Krebs v. Weber, No. 20961
Court | Supreme Court of South Dakota |
Writing for the Court | GILBERTSON, Justice |
Citation | 2000 SD 40,608 N.W.2d 322 |
Docket Number | No. 20962., No. 20961 |
Decision Date | 29 March 2000 |
Parties | Roger H. KREBS, Petitioner and Appellant, v. Douglas WEBER, Warden, South Dakota State Penitentiary, Appellee. |
608 N.W.2d 322
2000 SD 40
v.
Douglas WEBER, Warden, South Dakota State Penitentiary, Appellee
Nos. 20961, 20962.
Supreme Court of South Dakota.
Considered on Briefs November 29, 1999.
Decided March 29, 2000.
Mark Barnett, Attorney General, Craig M. Eichstadt, Assistant Attorney General, Pierre, for appellee.
GILBERTSON, Justice
[¶ 1.] Roger Krebs (Krebs) appeals the trial court's partial denial of his habeas corpus petition. The trial court's order granted partial relief to Krebs holding he could attempt to reinstate his appeal from his first state habeas petition, but denied relief on all other claims. State filed a notice of review. We hold that Krebs is not entitled to habeas relief.
FACTS AND PROCEDURE
[¶ 2.] Krebs was convicted in Beadle County, South Dakota of burglary, grand theft and possession of tools with intent to commit burglary. The background and detailed facts are set forth in State v. Krebs, 504 N.W.2d 580 (S.D.1993) (Krebs I). Krebs was sentenced to fifteen years for burglary, fifteen years for grand theft and ten years for possession of tools with intent to commit burglary. Krebs appealed these convictions to this Court, and we affirmed both the convictions and sentences. In Krebs I, we held that motions for the suppression of evidence seized in a vehicle search were properly denied and the trial court did not err in allowing the state to admit prior bad acts evidence.
[¶ 3.] In 1993 Krebs filed his first pro se petition for habeas corpus relief, asserting four substantive claims: (1) trial counsel was ineffective in failing to advance an alibi defense; (2) denial of his right to a fair trial because his trial was not severed from the co-defendant; (3) denial of his right to a fair trial because alleged tampered evidence was admitted into evidence and used against him; and (4) prosecutorial misconduct. Attorney Michael Thompson (Thompson) was appointed to represent him. In April 1994, Thompson filed a motion to withdraw and a brief pursuant to Sweeney v. Leapley, 487 N.W.2d 617 (S.D. 1992), asserting Krebs' application for habeas corpus had no merit. In response, Krebs requested his issues be protected for federal court review. On May 23, 1994, the original habeas court entered an order quashing Krebs' writ on the merits. Krebs did not appeal this denial of habeas relief. Krebs alleges in his affidavit neither Thompson nor the original habeas court informed him of the appeal procedures found in SDCL 21-27-18.1.
[¶ 4.] Krebs filed his second pro se state petition for habeas corpus relief on November 8, 1994 reasserting the same four
Did Thompson render ineffective assistance of counsel in filing a Sweeney brief with the first habeas court.
STANDARD OF REVIEW
[¶ 5.] Our review of habeas corpus proceedings is limited because it is a collateral attack on a final judgment. New v. Weber, 1999 SD 125, ¶ 5, 600 N.W.2d 568, 571 (citing Lien v. Class, 1998 SD 7, ¶ 10, 574 N.W.2d 601, 606) (other citation omitted). It is not a substitute for direct review. Id. (citing Loop v. Class, 1996 SD 107, ¶ 11, 554 N.W.2d 189, 191) (other citation omitted). We are guided by a well-established standard of review:
Habeas corpus can be used only to review (1) whether the court has 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. Habeas corpus is not a remedy to correct irregular procedures, rather, habeas corpus reaches only jurisdictional error. For purposes of habeas corpus, constitutional violations in a criminal case deprive the trial court of jurisdiction. Further, we may not upset the habeas court's findings unless they are clearly erroneous.
Bradley v. Weber, 1999 SD 68, ¶ 12, 595 N.W.2d 615, 619 (quoting Flute v. Class, 1997 SD 10, ¶ 8, 559 N.W.2d 554, 556) (other citations omitted). The habeas applicant has the initial burden, by a preponderance of the evidence, to prove entitlement to relief. New, 1999 SD 125, ¶ 5, 600 N.W.2d at 572 (citing Lien, 1998 SD 7, ¶ 11, 574 N.W.2d at 607). We may affirm the ruling of the habeas court if it is "right for any reason." Id. (citing Satter v. Solem, 458 N.W.2d 762, 768 (S.D.1990)) (other citation omitted).
ANALYSIS AND DECISION
[¶ 6.] Did Thompson render ineffective assistance of counsel in filing a Sweeney brief with the first habeas court.
[¶ 7.] Krebs argues Thompson rendered ineffective assistance of counsel per Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) during his first habeas proceeding by filing an ineffective Sweeney brief with the habeas court. State responds Sweeney does not mandate counsel is constitutionally required at every stage of habeas corpus proceedings.
[¶ 8.] In Sweeney v. Leapley, 487 N.W.2d 617, 619-20 (S.D.1992), we held the presence of a state statute authorizing a right to counsel for habeas corpus proceedings does not create a constitutional right to counsel. We concluded, "[s]ince the defendant had no constitutional
[¶ 9.] Thus, since Kreb's right to counsel is not granted him by the United States and South Dakota Constitutions, any right to counsel must flow from a statutory grant. SDCL 21-27-4 authorizes the appointment of an attorney in habeas proceedings in cases of indigency. Although the holding in Strickland has been well established for some time, our legislature has not seen fit to incorporate its requirements into the protections statutorily given applicants for a writ of habeas corpus.
[¶ 10.] However, Sweeney did recognize that state habeas applicants have rights granted to them by statute outside of those guaranteed by the Constitution. We held...
To continue reading
Request your trial-
Erickson v. Weber, No. 24624.
...is "right for any reason." Id. (citing Satter v. Solem, 458 N.W.2d 762, 768 (S.D.1990)) (other citation omitted). Krebs v. Weber, 2000 SD 40, ¶ 5, 608 N.W.2d 322, 324 (overruled on other grounds). We review findings of fact under the clearly erroneous standard, while we give no de......
-
Knecht v. Weber, No. 21846.
...habeas case is not an ordinary appeal; thus we have previously recognized that the standard of review is quite limited. See Krebs v. Weber, 2000 SD 40, ¶ 5, 608 N.W.2d 322, 324, overruled on different grounds by Jackson v. Weber, 2001 SD 30, 637 N.W.2d 19. A habeas review is more restricted......
-
Denoyer v. Weber, No. 23223
...595 NW2d at 619 (citations omitted). If the habeas court was "right for any reason," we may affirm its ruling. Krebs v. Weber, 2000 SD 40, ¶5, 608 NW2d 322, 324 (citing New v. Weber, 1999 SD 125, ¶5, 600 NW2d 568, 572) (citing Satter v. Solem, 458 NW2d 762, 768 (SD 1990))). [¶ 18.......
-
Hofman v. Weber, No. 21928.
...decisions is "a collateral attack on a final judgment," and thus more restricted than ordinary appeals. See Krebs v. Weber, 2000 SD 40, ¶ 5, 608 N.W.2d 322, 324 (citations omitted) overruled on other grounds by Jackson v. Weber, 2001 SD 136, 637 N.W.2d 19. The recognized standard ......
-
Erickson v. Weber, No. 24624.
...if it is "right for any reason." Id. (citing Satter v. Solem, 458 N.W.2d 762, 768 (S.D.1990)) (other citation omitted). Krebs v. Weber, 2000 SD 40, ¶ 5, 608 N.W.2d 322, 324 (overruled on other grounds). We review findings of fact under the clearly erroneous standard, while we give no defere......
-
Knecht v. Weber, No. 21846.
...habeas case is not an ordinary appeal; thus we have previously recognized that the standard of review is quite limited. See Krebs v. Weber, 2000 SD 40, ¶ 5, 608 N.W.2d 322, 324, overruled on different grounds by Jackson v. Weber, 2001 SD 30, 637 N.W.2d 19. A habeas review is more restricted......
-
Denoyer v. Weber, No. 23223
...SD 68, ¶12, 595 NW2d at 619 (citations omitted). If the habeas court was "right for any reason," we may affirm its ruling. Krebs v. Weber, 2000 SD 40, ¶5, 608 NW2d 322, 324 (citing New v. Weber, 1999 SD 125, ¶5, 600 NW2d 568, 572) (citing Satter v. Solem, 458 NW2d 762, 768 (SD 1990))). [¶ 1......
-
Hofman v. Weber, No. 21928.
...of habeas decisions is "a collateral attack on a final judgment," and thus more restricted than ordinary appeals. See Krebs v. Weber, 2000 SD 40, ¶ 5, 608 N.W.2d 322, 324 (citations omitted) overruled on other grounds by Jackson v. Weber, 2001 SD 136, 637 N.W.2d 19. The recognized standard ......