Whitepipe v. Weber

• Decision Date: 29 November 2007
• Docket Number: No. CIV 06-3018.,CIV 06-3018.
• Citation: 536 F.Supp.2d 1070
• Parties: Bryan Ward WHITEPIPE, Petitioner, v. Douglas WEBER, Warden, South Dakota State Penitentiary, Respondent.
• Court: U.S. District Court — District of South Dakota

536 F.Supp.2d 1070

Bryan Ward WHITEPIPE, Petitioner, v. Douglas WEBER, Warden, South Dakota State Penitentiary, Respondent.

No. CIV 06-3018.

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

November 29, 2007.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Bryan Ward Whitepipe, Sioux Falls, SD, Pro Se Petitioner.

Gary R. Campbell, Assistant Attorney General, Pierre, SD, for Respondent,

ORDER ADOPTING REPORTS AND RECOMMENDATIONS AND ORDER OF DISMISSAL

CHARLES B. KORNMANN, District Judge.

Petitioner pleaded guilty to rape and was sentenced to 20 years imprisonment on March 18, 2003. He appealed his conviction and sentence to the South Dakota Supreme Court and the Supreme Court affirmed on January 20, 2004. He filed a petition for a writ of habeas corpus in state court. The petition was denied and he appealed to the South Dakota Supreme Court, The Supreme Court, affirmed on July 13, 2006. Petitioner timely filed a petition for writ of habeas corpus under 28 U.S.C. 2254.

The Court submitted the above-entitled matter to U.S. Magistrate Judge Mark A. Moreno arid the magistrate judge submitted his report and recommendation to the Court on December 5, 2006, Doc. 15. The report and recommendation was served on the petitioner as required by 28 U.S.C. § 636. Petitioner filed objections, Does. 17, 32, and a motion to stay this matter to allow him to return to state court to exhaust his unexhausted claims. The motion to stay was referred to Magistrate Moreno and the magistrate submitted a supplemental report and recommendation to the court, on May 21, 2007, Doc. 35. The petitioner filed objections to the supplemental report and recommendations. Doc. 40. I have conducted a de novo review of the record.

I do not, of course, conduct a de novo review of the factual and legal determinations as made by the state courts. I do consider whether the state courts' adjudications "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." 28 U.S.C.. § 254(d)(1). Judge Moreno adequately and, correctly sets forth the standards to be, applied in this proceeding.

I have fully considered this entire matter, together with all the files and records herein. I agree with the magistrate that the only possible ground for relief would be the state court's method of summoning additional jury panel members and whether trial counsel's failure to object to the procedure constituted ineffective assistance of counsel. All other grounds for relief are defaulted or otherwise barred because they lack any possible merit. I agree that no evidentiary hearing should have been conducted and that counsel Should not have been appointed. Petitioner has done a good job of setting forth his claims and the claims are readily understood.

Petitioner claims, a violation of SDCL 16-13-42 in connection with the summons of additional jurors. Actually, the trial court proceeded under SDCL 16-13-43, claiming that the panel of petit jurors "would be" exhausted by challenges. A pro bono memorandum prepared, by petitioner's state habeas counsel also pointed out that the state trial court had proceeded under SDCL 16-13-43. This would be however, at most a violation of state law and not of federal law. SDCL 16-13-43 speaks of the panel being exhausted. Thus, the trial court "jumped the gun" in anticipating that the panel would be exhausted before juror selection had begun. SDCL 16-13-43 provides that the court is to order the sheriff, deputy sheriff, or coroner to summon, without delay, a sufficient number of additional jurors. The trial court, with the agreement of both lawyers and the defendant, did not want to use the sheriff directly since he was almost certain to be called as a witness for the prosecution. The trial court ordered the sheriffs secretary (who may also do secretarial work for the prosecuting attorney) to telephone citizens from various communities within the county to report for duty. This procedure was very questionable since jurors are not to be selected based on whether or not the juror has a telephone. We also do not know whether the persons reached by telephone would have been "persons possessing the qualifications of jurors", as required by the statute. We do not know whether the secretary identified herself as calling on behalf of the sheriff or what she told those she reached by telephone. I assume she did advise who she was and why she was calling on behalf of the sheriff. The fact that the judge and the lawyers had proceeded in this fashion in another case would be entirely immaterial. The matter could and should have been handled more carefully, in strict compliance with the statutes. I do not endorse or approve what was done here. I disagree with the statement by the magistrate that it was necessarily important that the sheriff did not personally execute the trial court's order but rather delegated this responsibility to his secretary. That procedure certainly lessened the possibility of prejudice but does not answer all questions as to what was done. The secretary is alleged to have gone "randomly" through the telephone book. What that means I do not know. There is, however, no evidence or any claim that the additional panel members were selected subjectively. The only evidence is that the panel members were selected objectively. There is no claim or evidence that the sheriff or the secretary were "guilty" of any actual impropriety.

Petitioner has not produced any reliable data or statistics relating to Gregory County, South Dakota, or as to the jury selection in this case. I suspect, but do not know for sure, that more Native Americans than non-Native Americans do not have telephones in Gregory County. I will assume that to be true. We know also that petitioner did not, before the state trial court, object to the supplementation of the jury panel, raise any other "structural" error, or complain previously that the supplementation of 30 additional jurors caused him to decide to plead guilty. He made no such claim in connection with his motion to withdraw his guilty plea or on direct appeal to the South Dakota Supreme Court. The state courts found that he pled guilty because he obtained a favorable plea agreement and that his plea had nothing to do with the jury panel supplementation. These determinations are not unreasonable applications of clearly established federal law as established by the United States Supreme Court. They are also not unreasonable in light of the evidence presented in the state proceedings.

It is not surprising that almost all of the cases dealing with so-called "bystander jurors" stem from the Eighth Circuit. Coury v. Livesay, 868 F.2d 842 (6th Cir. 1989), discusses the Eighth Circuit cases rather comprehensively. This includes Henson v. Wyrick, 634 F.2d 1080 (8th Cir.1980), cert. denied, 450 U.S. 958, 101 S.Ct. 1417, 67 L.Ed.2d 383 (1981) (a case where the sheriff personally selected his acquaintances as additional panel members and seven of them actually served on: the jury), Holt v. Wyrick, 649 F.2d 543, (8th Cir.1981), cert. denied, 454 U.S. 1143, 102 S.Ct. 1002, 71 L.Ed.2d 295 (1982) (a case where the additional panel members were selected by a sheriff from a neighboring county on an objective basis), Anderson v. Frey, 715 F.2d 1304 (8th Cir.1983), cert. denied, 464 U.S. 1057, 104 S.Ct. 739, 79 L.Ed.2d 198 (1984) (a case where five deputy sheriffs were used to summon additional jurors, without any evidence of actual impropriety by the sheriff, although the sheriff had been involved in the investigation of the alleged crime and was obviously the immediate supervisor of the deputies, the court finding that there was potential prejudice), Russell v. Wyrick, 736 F.2d 462 (8th Cir.1984), cert. denied, 469 U.S. 1219, 105 S.Ct. 1203, 84 L.Ed.2d 346 (1985) (a case in which the Court of Appeals rejected the argument that Anderson stood for the proposition that the participation of any individual possessing an institutional interest in the prosecution is sufficient to constitute a constitutional violation, the bottom line being that each case must be analyzed to determine the objectivity of the selection criteria and the extent of the involvement of the "interested official"), and Cody v. Solem, 755 F.2d 1323 (8th Cir.), cert. denied, 474 U.S. 833, 106 S.Ct. 104, 88 L.Ed.2d 84 (1985) (a case where the coroner selected the bystander juror and the case went to trial with the bystander as a member of the jury). In Cody, the bystander juror was not selected by "an interested official or his or her subordinates or professional associates", quoting from Anderson, 715 F.2d at 1309. Even if the sheriff's secretary was an "interested official", this only tells us that due process rights may have been violated. Cody, at 1334, relying on Anderson, 715 F.2d at 1309. Like the magistrate, I am unable to find that petitioner's due process rights were violated.

Having said all this, the bottom line is that the defendant pled guilty and did not Continue with the trial. As the magistrate points out on page ____ of Doc. 15, in general, once a defendant has pled guilty, the defendant cannot raise independent claims involving constitutional deprivations, including claims based on the legality of the jury selection process. That is true here as well.

For what it is worth, probably nothing, my experience as a trial court judge handling many hundreds of cases since 1995 involving assaults of a Native American woman or Native American child tell me that a Native American male and his attorney would not want very many Native American women serving on a jury in a case of this type. They know too much and have seen or heard too much, assuming even that they have not personally been assaulted. Many reported studies have pointed out the very high rate of sexual assaults of Native American women and...