Krebs v. Weber, No. 20961

• Citation: 2000 SD 40,608 N.W.2d 322
• Decision Date: 29 March 2000
• Docket Number: No. 20962., No. 20961
• Parties: Roger H. KREBS, Petitioner and Appellant, v. Douglas WEBER, Warden, South Dakota State Penitentiary, Appellee.
• Court: Supreme Court of South Dakota

608 N.W.2d 322

2000 SD 40

Roger H. KREBS, Petitioner and Appellant, 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.

D. Sonny Walter, Sioux Falls, for petitioner and appellant.

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 substantive claims. Krebs also asserted Thompson's Sweeney brief as an additional ground for relief in this second petition. Krebs' court-appointed counsel, Delmar "Sonny" Walter then filed an amended application for writ of habeas corpus on January 16, 1998.¹ The second habeas court entered findings of fact, conclusions of law and an order partially granting Krebs habeas relief. The court found Krebs should be allowed to return to the original habeas court to seek a certificate of probable cause in order to attempt to appeal from his initial habeas judgment. The court denied habeas relief on Krebs' ineffective assistance of counsel claim. Krebs appeals raising the following issue for our consideration:

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 right to counsel she could not be deprived of effective assistance of counsel." Id. The vast majority of federal courts that have examined this issue agree. State post-conviction proceedings are civil in nature, thus, "the sixth amendment right to effective assistance of counsel does not attach." Mitchell v. Wyrick, 727 F.2d 773, 774 (8th Cir.1984),cert. denied, 469 U.S. 823, 105 S.Ct. 100, 83 L.Ed.2d 45 (1984) (citing Williams v. Missouri, 640 F.2d 140, 144 (8th Cir.1981),cert. denied, 451 U.S. 990, 101 S.Ct. 2328, 68 L.Ed.2d 849 (1981)); Noble v. Sigler, 351 F.2d 673, 678 (8th Cir.1965),cert. denied, 385 U.S. 853, 87 S.Ct. 98, 17 L.Ed.2d 81 (1966). See also Wise v. Williams, 982 F.2d 142, 144 (4th Cir.1992),cert. denied, 508 U.S. 964, 113 S.Ct. 2940, 124 L.Ed.2d 689 (1993) (quoting Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 2566, 115 L.Ed.2d 640, 671 (1991) ("[T]here is no constitutional right to an attorney in state post-conviction proceedings. Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.")); Morin v. Rhode Island, 741 F.Supp. 32, 36 (D.R.I.1990) (citing Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir.1986),cert. denied, 479 U.S. 867, 107 S.Ct. 228, 93 L.Ed.2d 155 (1986)) (Sixth Amendment's guarantee of effective assistance of counsel does not extend to habeas corpus proceedings). "The Constitution entitles a criminal defendant to representation at the trial and sentencing stages and through the first appeal to which he has a right. However, it does not mandate representation during subsequent proceedings." Morin, 741 F.Supp. at 36 (citing Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974)).

[¶ 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 that an Anders (Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)) brief is required in habeas cases, as well as in direct appeals where counsel for the defendant determines that the client's claim is without merit. Sweeney, 487 N.W.2d at 620. Anders/Sweeney requires:

[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous.

487 N.W.2d at 619 (citing Anders, 386 U.S. at 744, 87 S.Ct. at 1400, 18 L.Ed.2d at 498).

The purpose of this requirement is to avoid "appointed counsel to brief against his client but would merely afford the latter that advocacy which a nonindigent defendant is able to obtain." Id.

[¶ 11.] An examination of the Anders/Sweeney brief filed in this case shows it falls short of the above stated requirements. In one page it disposes of all four substantive claims citing nothing in favor of Krebs and rather than keeping silent on the strength of the State's case, bolsters the State's arguments by concluding Krebs' issues are "without merit," result in no prejudice to him and he was not "denied a fair trial."

[¶ 12.] Nevertheless our review of the record in this case establishes no unfairness, unreliability or prejudice in his underlying conviction. Krebs'...