Moeller v. Weber

• Decision Date: 31 March 2009
• Docket Number: No. CIV. 04-4200.,CIV. 04-4200.
• Parties: Donald E. MOELLER, Petitioner, v. Douglas WEBER, Warden, South Dakota State Penitentiary, Respondent.
• Court: U.S. District Court — District of South Dakota

635 F.Supp.2d 1036

Donald E. MOELLER, Petitioner, v. Douglas WEBER, Warden, South Dakota State Penitentiary, Respondent.

No. CIV. 04-4200.

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

March 31, 2009.

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Mark F. Marshall, for Petitioner.

Craig M. Eichstadt, Sherri Sundem Wald, Attorney General of South Dakota, Pierre, SD, for Respondent.

MEMORANDUM OPINION AND ORDER RE: APPLICATION FOR RELIEF UNDER 28 U.S.C § 2254 AND CERTIFICATE OF APPEALABILITY

LAWRENCE L. PIERSOL, District Judge.

Pending before this Court is Petitioner Donald Moeller's Third Amended Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief. Petitioner has submitted his Traverse (Doc. 14), Respondent has submitted a Reply to the Traverse (Doc. 18), and Petitioner has also submitted a sur-reply (Doc. 19). In addition, the Court heard oral argument on February 23, 2009, on the habeas corpus issues raised in the Third Amended Petition.

Severance of Causes of Action

In this Court's February 3, 2009 Order scheduling Oral Argument (Doc. 102) this Court directed the parties to be prepared to discuss whether the habeas cause of action under 28 U.S.C. § 2254 should now be severed from Moeller's cause of action under 42 U.S.C. § 1983 or alternatively, under 28 U.S.C. § 2201, challenging South Dakota's lethal injection method of execution. After the United States Supreme Court handed down its decision in Hill v. McDonough, 547 U.S. 573, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006), which allowed a timely filed 1983 action to challenge the constitutionality of the manner in which a lethal injection execution is conducted, and after the 2007 amendments to S.D.C.L. § 23A-27A-32, the statute which establishes South Dakota's lethal injection protocol, became effective, Petitioner filed an Amended Motion for Leave to Serve a Third Amended Petition for Writ of Habeas Corpus And Complaint for Declaratory and Injunctive Relief under 42 U.S.C. § 1983, or alternatively, under 28 U.S.C. § 2201, for violation of his civil rights under state law with regard to the lethal injection protocol which would apply to his execution. Doc. 54. Since the United States Supreme Court has concluded that the difference in remedy between a habeas claim and a Section 1983 claim does not ipso facto preclude their joinder in a single lawsuit, see Wolff v. McDonnell, 418 U.S. 539, 554, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Preiser v. Rodriguez, 411 U.S. 475, 499 n. 14, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), and since joinder is generally encouraged to avoid multiplicity of actions, this Court allowed Moeller to amend his habeas petition to add the cause of action. Subsequently, delays in discovery caused by the development of a new lethal injection protocol in South Dakota and the departure of habeas counsel to begin a new position as a state magistrate judge have caused this Court to reconsider the benefits of joinder of the habeas claim and Section 1983 claim. Counsel for the Respondent advised at oral argument that Respondent favors severing the causes of action, and Moeller's habeas counsel acknowledged that severance would be beneficial to replacement habeas counsel. For these reasons, the Court is severing the Habeas Corpus Petition under 28 U.S.C. § 2254 and the cause of action for Declaratory and Injunctive Relief with regard to the lethal injection protocol which would apply to Moeller's execution.

Counsel for Respondent advised the Court at oral argument that the rule-making on the new lethal injection protocol was not yet complete. The Court is therefore staying discovery on the lethal injection protocol until the rule-making process is completed and denying Moeller's Motions to Compel Discovery (Doc. 87, 90) and denying the Respondent's Motion for Protective Order (Doc. 80) without prejudice to the parties to reassert any discovery issues which have not yet been resolved at the time the rule-making process is completed and the Court and Moeller's replacement counsel have been informed that the rule-making process is completed. In light of this Court's ruling on severing Moeller's causes of action this Memorandum Opinion addresses only the habeas claims made by Moeller pursuant to 28 U.S.C. § 2254.

FACTUAL AND PROCEDURAL BACKGROUND

On the evening of May 8, 1990, nine-year-old Rebecca O'Connell of Sioux Falls was reported missing. The next day, her body was found in a wooded area in Lincoln County, South Dakota. An autopsy revealed that Rebecca had been vaginally and anally raped, and had been stabbed in her neck, back, shoulder, chest, hip, arms and hands. She died as a result of a cut to her jugular vein. Circumstantial evidence linked Moeller to the crime and he was interviewed by the police and provided blood and hair samples on May 12, 1990. On May 13, 1990, Moeller fled from Sioux Falls and eventually resided in Tacoma, Washington where he used a fictitious name. He was located in Tacoma, Washington in February of 1991 and brought back to South Dakota and prosecuted for Rebecca's murder. After being convicted by a jury of first-degree rape and first-degree murder, and after being sentenced to death by lethal injection, Moeller's conviction was reversed by the South Dakota Supreme Court. See State v. Moeller, 548 N.W.2d 465 (S.D.1996).

Moeller was retried in April and May of 1997. He was again convicted by a jury of first-degree rape and first-degree murder, and sentenced to death by lethal injection. The South Dakota Supreme Court affirmed the 1997 convictions and denied rehearing. See State v. Moeller, 616 N.W.2d 424 (S.D.2000). Moeller sought and was denied a writ of habeas corpus in state court. The South Dakota Supreme Court affirmed the denial of state habeas relief. See Moeller v. Weber, 689 N.W.2d 1 (S.D.2004). Moeller timely filed for federal habeas relief pursuant to 28 U.S.C. § 2254.

REQUIREMENTS FOR HABEAS RELIEF

Under 28 U.S.C. § 2254(d), a habeas petitioner whose claims were adjudicated on the merits in state court is not entitled to relief unless he can demonstrate that the state court's adjudication of his claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

A decision by a state court is "contrary to" law clearly established by the Supreme Court if it "applies a rule that contradicts the governing law set forth in [Supreme Court] cases" or if it "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from our precedent." Williams v. Taylor, 529 U.S. 362, 405-406, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). See also Price v. Vincent, 538 U.S. 634, 640, 123 S.Ct. 1848, 155 L.Ed.2d 877 (2003).

With regard to establishing the existence of an "unreasonable application" of clearly established law, a federal habeas court may not grant habeas relief simply because that court concludes in its independent judgment that the state-court decision applied a decision of the Supreme Court incorrectly. See Bell v. Cone, 535 U.S. 685, 698-699, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). Rather, the habeas applicant has the burden to show that the state court applied Supreme Court case law to the facts of his case in an objectively unreasonable manner. See Price v. Vincent, 538 U.S. at 641, 123 S.Ct. 1848.

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the question of whether there was "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding" is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable. See Williams v. Taylor, 529 U.S. at 410, 120 S.Ct. 1495. In addition, the AEDPA also requires federal habeas courts to presume the correctness of the state courts' factual findings unless an applicant rebuts this presumption with "clear and convincing evidence." § 2254(e)(1). See also Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 1939-1940, 167 L.Ed.2d 836 (2007).

ISSUE I

WHETHER THERE WAS A FAILURE TO FOLLOW SOUTH DAKOTA'S STATUTORY DEATH PENALTY PROCEDURE WHICH DEPRIVED MOELLER OF HIS RIGHTS TO DUE PROCESS OF LAW, AND EQUAL PROTECTION OF THE LAWS, AND WHICH VIOLATED THE DOCTRINE OF SEPARATION OF POWERS?

Moeller alleges that numerous failures¹ to follow the statutory procedures of S.D.C.L. ch. 23A-27A constitute structural error² that affected the entire trial process from the initial offer of a plea bargain, to the selection of a death qualified jury, and throughout the conduct of the trial and penalty phase of the trial. Moeller also contends that this structural error existed in the South Dakota Supreme Court's proportionality analysis and decision on appeal. Moeller's traverse in addressing this issue focuses on proportionality review and prosecutorial discretion.

Proportionality Review

S.D.C.L. § 23A-27A-12 requires that the South Dakota Supreme Court in reviewing a case in which a sentence of death was imposed determine "[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." S.D.C.L. § 23A-27A-8 provides that the South Dakota Supreme Court "accumulate the records of all capital felony cases that the court deems appropriate." The South Dakota Supreme Court has determined that similar cases for purposes of proportionality review are those cases in which capital sentencing proceeding was actually conducted See State v. Rhines, 548 N.W.2d 415 (S.D.1996). The South Dakota Supreme Court rejected Moeller's contention that by...