Piper v. The Attorney Gen.

• Docket Number: 5:20-CV-05074-RAL
• Decision Date: 01 June 2023
• Parties: BRILEY PIPER, Plaintiff, v. THE ATTORNEY GENERAL OF THE STATE OF SOUTH DAKOTA, DAN SULLIVAN, WARDEN, SOUTH DAKOTA STATE PENITENTIARY; Defendants.
• Court: U.S. District Court — District of South Dakota

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BRILEY PIPER, Plaintiff,
v.
THE ATTORNEY GENERAL OF THE STATE OF SOUTH DAKOTA, DAN SULLIVAN, WARDEN, SOUTH DAKOTA STATE PENITENTIARY; Defendants.

No. 5:20-CV-05074-RAL

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

June 1, 2023

OPINION AND ORDER DENYING MOTION FOR NEUROPSYCHOLGICAL TESTING

ROBERTO A. LANGE CHIEF JUDGE

Petitioner Briley Piper (Piper), a state death row inmate, wants to expand the state court record and develop new evidence to support his claim that counsel in his state capital sentencing trial were ineffective by failing to investigate and present evidence on potential brain damage and Fetal Alcohol Spectrum Disorder (FASD). He seeks an order to allow four experts to enter the South Dakota State Penitentiary where he is being held to evaluate him for these conditions. Doc. 60. A federal statute, though, places strict limits on a federal habeas court's authority to consider new evidence the prisoner neglected to offer in state court. See 28 U.S.C. § 2254(e)(2). If the prisoner "has failed to develop the factual basis of a claim in State court proceedings," 28 U.S.C. § 2254(e)(2) bars federal courts from holding "an evidentiary hearing on the claim"-or, indeed, even considering extra-record evidence submitted to support the claim-unless the prisoner can satisfy some narrow exceptions not applicable here. 28 U.S.C. § 2254(e)(2)(A)(i), (ii).

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Piper's motion frames the question whether he should be deemed responsible for failing to develop the record in state court. Section 2254(e)(2) only applies if the petitioner can be deemed "at fault" for failing to develop the factual basis of a claim, meaning that he "bears responsibility for the failure." Shinn v. Ramirez. 142 S. C.t 1718,1734 (2022) (cleaned up and citation omitted). Piper argues that he is not "at fault" because his state postconviction attorney's "extreme negligence" severed the attorney-client agency relationship. Under the Supreme Court's recent decision in Shinn. however, Piper is responsible for his state postconviction attorney's alleged failures to develop the record under the circumstances of his case. This Court therefore denies Piper's motion for testing.

I. Facts

A. Background and Procedural History

In April 2000, Chester Allan Poage's partially clothed body was found in a remote location in Lawrence County, South Dakota. Piper v. Young. 936 N.W.2d 793, 799 (S.D. 2019); State v. Piper. 709 N.W.2d 783, 792 (S.D. 2006). Law enforcement identified Piper, Elijah Page, and Darrell Hoadley as suspects in Poage's murder and a related burglary at Poage's house. Id. The State of South Dakota (State) charged the three men with first-degree murder, kidnapping, first-degree robbery, first-degree burglary, and grand theft. Id. Attorneys Patrick Duffy and Timothy Rensch were appointed to represent Piper. Doc. 67 at ¶ 3. In early 2001, Piper pleaded guilty to all five crimes, including the first-degree felony murder of Poage. Piper, 936 N.W.2d at 799 & n.l. A state court judge sentenced Piper to death after a three-day sentencing hearing. Id. at 800. The Supreme Court of South Dakota affirmed Piper's death sentence on direct review in 2006. Id. at 801.

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Piper, represented by attorneys Steve Miller and Steven Binger, then; filed a habeas petition in state court. Id. at 801-02; Doc. 67 at ¶ 6. The Supreme Court of South Dakota granted Piper habeas relief in 2009, finding that Piper did not validly waive his right to have a jury decide whether to impose the death penalty because the state trial judge had not made clear that Piper would receive a life sentence if even one juror voted against the death penalty. Piper v. Weber, 771 N.W.2d 352, 358-60 (S.D. 2009). The Court remanded Piper's case for resentencing by a jury. Id. at 360.

In August 2009, a state court judge appointed attorneys Robert Van Norman and Michael Stonefield to represent Piper in the resentencing proceeding. Doc. 67 at ¶¶ 7, 50; Doc. 2 at 288. Both men were experienced criminal defense attorneys: Van Norman, the Federal Public Defender for South Dakota from 1999 to 2003, had tried seven death penalty cases; Stonefield, a long-time state public defender, had worked on two death penalty cases. Doc. 90-11 at 7-8, 92, 115. Piper moved to withdraw his guilty pleas in October 2009, arguing among other things that he was never informed that he did not have to plead guilty to receive a court sentencing. Doc. 2 at 288, 339-49, 367. He filed several supplements to the motion and deposed a law enforcement officer about whether evidence had been withheld in his earlier case. Doc. 2 at 381-88. Judge Jerome A. Eckrich III denied Piper's motion in November 2010. Doc. 2 at 388. In December 2010, Piper unsuccessfully petitioned the Supreme Court of South Dakota for permission to appeal Judge Eckrich's denial. Doc. 2 at 292,414-29; Doc. 90-11 at 126-27.

Having failed to overturn Piper's guilty pleas, Van Norman and Stonefield turned their focus to avoiding the death penalty for Piper. They sought to hire a psychologist and mitigation specialist and collected records to support Piper's defense. Doc. 88-1 at 10,14; Doc. 90-6 at 225. One of the records collected-and the one most relevant to Piper's current motion-was a

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February 1994 report prepared by Lyn Clark, M.D., when Piper was 13. Doc. 2 at 233; Doc. 66-1 at 5. Piper's mother Linda had Dr. Clark evaluate Piper because she was concerned about his impulsive behavior and wanted a second opinion. Doc. 2 at 233; Doc. 66-5 at 80-81. The "Medical History" section of Dr. Clark's report noted that Linda recalled smoking one pack of cigarettes per day while pregnant with Piper and consuming "some alcohol."^[1] Doc. 2 at 235. Dr. Clark noted that Piper was born four to six weeks prematurely, developed mild neonatal jaundice, and suffered from vomiting for the first month of his life. Doc. 2 at 235; Doc. 66-1 at 5. She gave Piper a neurodevelopmental examination called the Pediatric Examination of Educational Readiness in Middle Childhood. Doc. 2 at 237. Dr. Clark concluded that attention deficit disorder (ADD)^[2] was a "primary concern" for Piper but believed that ADD was "not the total explanation for [his] behavioral difficulties." Doc. 2 at 241. In Dr. Clark's view, the "extent of Piper's aggression and the "seriousness" of his conduct were "not necessarily typical of students with primary" ADD. Id. Dr. Clark's report did not mention prenatal alcohol exposure or FASD^[3] as a possible explanation for Piper's behavior. Doc. 2 at 233-43.

In January 2011, Judge Eckrich granted Piper's motion to appoint capital mitigation specialist Jeannette Sheldon and psychologist Dewey Ertz. Doc. 88-1 at 6, 19, 29; Doc. 2 at 292, 430.

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Sheldon's role would be to investigate Piper's life history, flag issues that could warrant further evaluation, and prepare a narrative for her testimony in court. Doc. 88-1 at 6-14, 16-18, 21-22. She had over 200 hours of training in mitigation work and 70 hours of one-on-one training with forensic psychologists and psychiatrists. Doc. 90-6 at 219. Stonefield explained at a motion hearing that Sheldon had said that while the average number of hours necessary to do a "complete mitigation investigation" was over a thousand, she could do a "competent" job in Piper's case in 150 to 200 hours. Doc. 88-1 at 9-10. According to Stonefield, Sheldon did not need as much time as she would in a typical case because the defense team had already done some investigation and compiled documents and because there was less history to review given Piper's young age when the murder occurred. Doc. 88-1 at 10-12. Stonefield further explained that Dr. Ertz would review Piper's records for mitigation evidence. Doc. 88-1 at 20-23. Stonefield said that, like the psychologists in the Hoadley and Page trials, Dr. Ertz would testify about the mitigating factors of youth, drug use, and the group dynamic involved in the killing. Doc. 88-1 at 21-23. Judge Eckrich initially capped Sheldon's fees at $10,000 and Dr. Ertz's fees at $4,000. Doc. 2 at 430. He later granted an additional $5,000 for Sheldon's work. Doc. 2 at 432.

Sheldon began reviewing Piper's school, psychological, and court records in February 2011. Doc. 90-6 at 225. She prepared a 57-page social history for Piper that involved nearly 200 hours of work. Doc. 90-7 at 59; Doc. 66-1. She spent 19 hours with Piper in person and interviewed other witnesses by phone. Doc. 90-7 at 19, 59, 83; Doc. 90-6 at 225, 239. The social history detailed Piper's struggles with impulsivity and ADHD, his poor academic performance, and his use of alcohol and hard drugs at a young age. Doc. 66-1 at 21-22, 24, 27-35, 37-40, 42, 49-54, 56. It discussed the violence Piper faced at home, describing how he endured beatings from his parents and older brother. Doc. 66-1 at 9, 17, 45-46. It also described instances when a

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doctor, teacher, or probation officer concluded that Piper had grave problems and needed counseling or inpatient treatment, but Piper's parents either downplayed the seriousness of his issues or disregarded the recommendation. Doc. 66-1 at 33, 35-37, 39, 41, 44-48. Citing to Dr. Clark's evaluation, the social history noted that Linda "smokefd] one pack of cigarettes a day and consume[d] alcohol" while pregnant with Piper. Doc. 66-1 at 5. Sheldon also, discussed a diagnostic evaluation performed by psychologist Michael Rose on Piper in January 1994. Doc. 66-1 at 32-35; Doc. 66-6. Dr. Rose's diagnostic impression of Piper was that he had conduct disorder of an undifferentiated type. Doc. 66-1 at 34; Doc. 66-6 at 7. Dr. Rose's report did not mention anything about FASD. Doc. 66-6.

Dr. Ertz met with Piper twice before the trial for a total of about five hours and interviewed him "extensive[ly]" about his background and the murder. Doc. 90-7 at 183-85, 190. He also reviewed many documents, including Sheldon's social history, the...