Satter v. Leapley

• Decision Date: 22 December 1992
• Docket Number: No. 91-2185,91-2185
• Citation: 977 F.2d 1259
• Parties: Steven SATTER, Appellant, v. Walter LEAPLEY, Warden, South Dakota State Penitentiary; Roger Tellinghuisen, Attorney General, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1259

977 F.2d 1259

Steven SATTER, Appellant, v. Walter LEAPLEY, Warden, South Dakota State Penitentiary Roger Tellinghuisen, Attorney General, Appellees.

No. 91-2185.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 13, 1991.

Decided Oct. 19, 1992.

Rehearing and Rehearing En Banc Denied Dec. 22, 1992.

Aloysius Arendt, Pierre, S.D., for appellant.

Craig M. Eichstadt, Pierre, S.D., for appellee.

Before BEAM, Circuit Judge, HEANEY, Senior Circuit Judge, and LOKEN, Circuit Judge.

BEAM, Circuit Judge.

Steven Satter appeals the denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. In 1974, he was convicted of two counts of involuntary manslaughter. His convictions were affirmed on direct appeal, but were vacated by the South Dakota Supreme Court in two actions for post-conviction relief. Satter is now in custody, awaiting retrial. In this habeas action, he asserts that his retrial is barred by the Double Jeopardy Clause of the Fifth and Fourteenth Amendments to the Constitution. The district court dismissed the action, holding that the claim is procedurally barred. We affirm.

I. BACKGROUND

Satter was tried and convicted of two counts of unpremeditated murder in 1974. He was sentenced to two concurrent life terms without possibility of parole. His conviction was affirmed on direct appeal. State v. Satter, 90 S.D. 485, 242 N.W.2d 149 (1976) (Satter I). In his direct appeal, he asserted, among other things, that there was insufficient evidence of the depraved mind required for second-degree murder and that there was insufficient evidence to counter his claim of self-defense. The South Dakota Supreme Court found the evidence was sufficient. The court noted that, notwithstanding his claim of self-defense, Satter testified at trial that he had shot the victim in the back of the head after the victim had already been shot twice. Id. at 151-52.

In 1986, Satter filed a petition for post-conviction relief in the South Dakota state courts. He raised these issues: 1) voluntariness of statements to police; 2) ineffective assistance of counsel; and 3) inadequate jury instructions. Appellant's Appendix at 3 (Satter's Petition for a Writ of Habeas Corpus, in answer to question regarding grounds raised in previous habeas petitions). ¹ The state habeas court denied his petition (Appellee's Appendix at 36-45, Memorandum Opinion of South Dakota Circuit Court Judge Irvin Hoyt, dated May 4, 1987), but the South Dakota Supreme Court later reversed, holding that certain statements should not have been admitted into evidence. Satter v. Solem, 422 N.W.2d 425, 428 (S.D.1988) (Satter II). The state petitioned for a rehearing, which was granted, on the limited issues of the voluntariness of a statement and ineffective assistance of counsel. Satter v. Solem, 434 N.W.2d 725 (S.D.), cert. denied sub nom. Rist v. Satter, 490 U.S. 1091, 109 S.Ct. 2432, 104 L.Ed.2d 989 (1989) (Satter III). The statement at issue was found involuntary and the case was remanded to the habeas court for determination of the effects of the statement under the "fruit of the poisonous tree doctrine" announced in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Satter III, 434 N.W.2d at 728. On remand, the habeas court denied relief (Appellee's Appendix at 1-22, Memorandum of South Dakota Circuit Judge Robert L. Timm, dated July 31, 1989) but was again reversed. Satter v. Solem, 458 N.W.2d 762 (S.D.1990) (Satter IV). The South Dakota Supreme Court granted the writ of habeas corpus, vacated Satter's conviction and held that he is entitled to a new trial. Id. at 770. The Supreme Court also set forth the boundaries of admissible evidence. Id. Satter is now awaiting retrial.

In his petition for habeas relief in the present action, Satter asserts there is insufficient evidence to prove the depraved mind element and insufficient evidence to negate his claim of self-defense. In essence, he seeks adjudication of the sufficiency of evidence at his trial and asserts that a finding of insufficient evidence would form the predicate for a claim that a retrial is barred by the Double Jeopardy Clause of the Fifth and Fourteenth Amendments to the Constitution. The district court found that his claim is procedurally barred.

Satter raises three issues on appeal: 1) whether the district court erred in determining that the state court record contains a plain statement of procedural default; 2) whether the district court erred in finding that Satter did not fairly present the issue of insufficiency of evidence to the state courts; and 3) whether the district court erred in determining there has been no fundamental miscarriage of justice. Satter makes no claim of cause and prejudice to overcome the procedural bar.

II. DISCUSSION

A threshold issue is jurisdiction. ² The court has jurisdiction to hear a properly exhausted claim of this type under 28 U.S.C. § 2254. See Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 302-03, 104 S.Ct. 1805, 1810, 80 L.Ed.2d 311 (1984) (plurality opinion) (recognizing the special nature of the double jeopardy right and the fact that the right cannot be fully vindicated on appeal following final judgment). A claim that a state prosecution will violate the Double Jeopardy Clause presents an exception to the general rule of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), that federal courts abstain from interfering with state criminal proceedings. Mannes v. Gillespie, 967 F.2d 1310, 1312 (9th Cir.1992). It is thus well established that federal district courts can entertain pretrial habeas petitions in which petitioner asserts an impending state trial violates the Double Jeopardy Clause. Palmer v. Clarke, 961 F.2d 771, 774 (8th Cir.1992).

Ordinarily, a federal court reviewing a state conviction in a 28 U.S.C. § 2254 proceeding may consider only those claims which the petitioner has presented to the state court in accordance with state procedural rules. Gilmore v. Armontrout, 861 F.2d 1061, 1065 (8th Cir.1988), cert. denied, 490 U.S. 1114, 109 S.Ct. 3176, 104 L.Ed.2d 1037 (1989). This requirement implicates both the questions whether the petitioner has exhausted all remedies available in state court and whether he has preserved his claims for federal habeas corpus review by complying with state procedural rules governing their presentation. Id. Thus the determination of the procedural bar issue is separate and distinct from inquiry concerning whether a claim has been exhausted.

A component of the exhaustion issue is whether an issue has been "fairly presented" to the state courts in a federal constitutional context. See Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). The state argues that the sufficiency of evidence issue was not presented to the state courts in a federal constitutional context but was raised only as a matter of state law. Although the constitutional substance of a claim must be apparent, it is not necessary to cite "book and verse on the federal constitution." Id., 404 U.S. at 278, 92 S.Ct. at 513 (quoting Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir.1958)). Any challenge to the sufficiency of the evidence to convict in a state prosecution is necessarily a due process challenge to the conviction. West v. Wright, 931 F.2d 262, 266 (4th Cir.), cert. granted, --- U.S. ----, 112 S.Ct. 656, 116 L.Ed.2d 748 (U.S.1991). See Jackson v. Virginia, 443 U.S. 307, 322, 99 S.Ct. 2781, 2791, 61 L.Ed.2d 560 (1979) ("[A] challenge to a state conviction brought on the ground that the evidence cannot fairly be deemed sufficient to have established guilt beyond a reasonable doubt states a federal constitutional claim.") We find that Satter adequately alerted the state courts that he was raising a federal constitutional claim on direct appeal. To satisfy exhaustion requirements, a habeas petitioner who has, on direct appeal, raised a claim that is decided on its merits need not raise it again in a state post-conviction proceeding. Evans v. Court of Common Pleas, Delaware Co., Pa., 959 F.2d 1227, 1230 (3d Cir.), petition for cert. filed, --- U.S.L.W. ---- (U.S. July 13, 1992) (No. 92-5224). Accordingly, Satter has properly exhausted his sufficiency of evidence claim. This finding is of no consequence, however, because Satter later abandoned the claim, as discussed infra.

Having been exhausted, petitioner's claims must still comply with state procedural rules governing post-conviction proceedings. The district court found that Satter had abandoned the issue of sufficiency of evidence in his state court actions for post-conviction relief, and thus had procedurally defaulted that claim. We agree. South Dakota law provides that "any ground not raised ... in the proceedings resulting in his conviction or sentence or in any other proceeding that the applicant has taken to secure relief from his conviction ... may not be the basis for a subsequent application...." S.D. Codified Laws § 21-27-16.1 (1987). See Gregory v. Solem, 449 N.W.2d 827, 831 (S.D.1989) (adopting "cause and prejudice" standard of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), in order to overcome procedural bar). Satter would now be barred from raising the issue of insufficiency of evidence in a subsequent action for post-conviction relief in state court. Accordingly, he has defaulted that claim by his failure to pursue it in state post-conviction proceedings.

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an adequate and independent state procedural rule, federal habeas review is barred unless the prisoner can show cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, --- U.S. ----, ----, 111 S.Ct. 2546, 2551, 115 L.Ed.2d...