Opinion
CIV. NO. 06-3018.
December 5, 2006
REPORT AND RECOMMENDATION FOR DISPOSITION OF PETITION UNDER 28 U.S.C. § 2254 FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY
The above-captioned 28 U.S.C. § 2254 case was referred to this Court by the District Court pursuant to 28 U.S.C. § 636(b)(1)(B) for purposes of appointing counsel, if appropriate, conducting necessary hearings, including an evidentiary hearing, and submitting to the latter court proposed findings of fact and a recommendation for disposition of the case.
The Honorable Charles B. Kornmann, United States District Judge, presiding.
After careful review of the records on file, including the state court filings and transcripts in Gregory County Cr. Nos. 01-39 and 02-21 and Civ. No. 04-43 and South Dakota Supreme Court Appeal Nos. 22824 and 24152, and based on the totality of the circumstances present, the Court does now make the following findings of fact and report and recommendation for disposition in accordance with the District Court's referral order.
I.
While on probation for a forgery offense, Petitioner, Bryan W. Whitepipe ("Whitepipe"), was charged with rape, kidnapping and aggravated assault. On the third day of trial, Whitepipe agreed to plead guilty to second degree rape (SDCL 22-22-1(4) (2000)) pursuant to a plea agreement. Whitepipe's plea was subsequently accepted and he was sentenced to a prison term of 20 years, with credit for the 370 days he already spent in custody.
In his direct appeal to the state supreme court, Whitepipe raised two issues, to-wit: whether the trial court erred in denying his motion to suppress statements he made to the Gregory County Sheriff and whether he was entitled to be resentenced because that court allowed an Abel (sexual offender) Assessment to be included in his presentence investigation report. The supreme court summarily affirmed Whitepipe's conviction, concluding that it was manifest on the face of the briefs and the record that his appeal was without merit because the issues on appeal:
1. Were clearly controlled by settled South Dakota law or federal law binding upon the State; and
2. Were ones of judicial discretion and there clearly was not an abuse of discretion.See State v Whitepipe, 683 N.W.2d 423 (S.D. 2004) (table).
Subsequently, Whitepipe sought habeas relief in state court. In his state petition, Whitepipe alleged that his rights under the due process and "right to counsel" provisions of the federal and state Constitutions were violated. Specifically, Whitepipe claimed that:
1. The jury panel was improperly selected due to the trial court's failure to follow the requirements of state law;
2. He was coerced into pleading guilty after being informed by trial counsel that the trial court had directed Damon Wolf, the Gregory County Sheriff and a witness in the case, to call additional prospective jurors when a shortage in the venire panel was discovered;
3. He was likewise forced to plead guilty because none of the jurors called or seated were Native Americans, and as such, the jury that was selected did not represent a fair cross section of the people of Gregory County;
4. The trial court erred in refusing to allow him to withdraw his guilty plea before sentencing;
5. The prosecutor committed a Brady violation by withholding medical reports and testimony of Dr. Sophie Two Hawks, a physician and prosecution witness, who had examined the victim, Margaret Hacker; and
6. Trial counsel was ineffective because counsel failed to make proper objections in connection with the jury selection process and provided Whitepipe with inadequate advice that resulted in a guilty plea that was not an intelligent and voluntary choice.
At the end of the evidentiary hearing, the state habeas court determined, and habeas counsel agreed, that the crux of Whitepipe's grounds for habeas relief was whether the trial court's method of supplementing the jury panel amounted to structural error and whether trial counsel's failure to object to the same constituted ineffective assistance of counsel. The habeas court denied relief on these grounds and then later denied Whitepipe's certificate of probable cause.
Thereafter, Whitepipe sought a certification from the state supreme court that an appealable issue existed. In doing so, he raised only claims pertaining to the jury selection matter and the effectiveness of his counsel's assistance with respect to it. The supreme court denied Whitepipe's certification request.
Whitepipe then filed a timely pro se petition, under § 2254, for a writ of habeas corpus, raising issues that were either abandoned or waived in state court. The District Court ordered Respondent, Douglas Weber, Warden of the South Dakota State Penitentiary ("State"), to file an answer or responsive pleading. After the State filed its Answer and copies of the state criminal, habeas and appellate files, the District Court referred the case to this Court. Whitepipe then, without leave of court, filed a Reply to the State's Answer, expounding on his prior claims and alleging that his trial, appellate and habeas counsel were ineffective.
Rule 5(e) of the § 2254 Rules contemplates that permission be granted and a time period be set by the reviewing court before a petitioner may file a reply to the respondent's answer.
II.
During the course of a prolonged drinking bout that began on March 8, 2003 and lasted several days, Whitepipe not only raped, bit and beat Hacker, his girlfriend, but also refused to take her home. In essence, Whitepipe became enraged when a friend accused Hacker of consorting with a trucker when the van Whitepipe had allowed her to borrow ran out of gas the night before.
When Hacker returned to the residence where she and Whitepipe had been staying with friends, Whitepipe began to physically abuse her. At first, he pushed her around and pulled her by the hair, but once they went upstairs, he began hitting her. He also bit her on the chin, nose, cheeks, arms and a leg. In addition, Whitepipe struck her on the back of the head with a closed fist. Hacker tried to fight Whitepipe off, but he was able to subdue her. Later, he grabbed Hacker's neck and choked her, rendering her unconscious. When she regained consciousness, Hacker discovered that Whitepipe had stuck a beer bottle inside her vagina, causing her great pain. After removing the beer bottle, Hacker fled to the bathroom, where she washed off blood from her face from a cut to her nose.
Afterwards, Whitepipe made threatening gestures towards Hacker whenever the trucker incident came up in conversation. He also made Hacker change her clothes and took those that she had been wearing. At one point after the initial assault, a friend intervened and knocked Whitepipe down when he tried to strike Hacker again. On another occasion, Whitepipe threatened to make the left side of Hacker's face look like the injured right side if she said anything to anyone. For days, Whitepipe would not leave Hacker alone, and when she asked to be taken home, he refused to do so, telling her that she had to stay until she healed up. In addition, Whitepipe would not take Hacker home because he did not want her family to see the bruises on her face and was concerned about getting into trouble.
When Whitepipe finally did take Hacker home, an aunt, who was a community health representative, saw Hacker and how badly she was injured (her chin was green and swollen at the time) and called an ambulance. Hacker was hospitalized for two days and, seven and-a-half months later, still had scarring on her face and difficulty seeing to her right side.
On March 13, 2002, Whitepipe was interviewed by Sheriff Wolf. While denying any wrongdoing, Whitepipe confirmed much of Hacker's account of what happened. During the interview, Whitepipe said that the story about how Hacker had "supposedly been fooling around with a truck driver" (which she denied) still, days later, made him "really mad ." He admitted to slapping Hacker four or five times and maintained that the sex he and she had was consentual. Whitepipe initially denied that he choked Hacker, but then acknowledged that he had done so, but not hard enough to make her pass out, as he had done before when they had sex. He conceded though that he may have gotten carried away with her. As for the biting, Whitepipe first denied doing it, and then claimed that the marks on Hacker were just hickeys, which he would often inflict on her when they had sex together. Similarly, Whitepipe initially denied putting a beer bottle in Hacker's vagina, but later admitted to doing so, contending that Hacker told him to go ahead and do it. Whitepipe acknowledged that he did not want to take Hacker back to her home until her injuries looked better and that he admonished her not to say anything because he would go to jail if she did.
After being arrested, Whitepipe called Hacker from the jail and asked her not to appear in court against him. In return, he promised to buy her groceries.
III.
Although Whitepipe has not filed a motion seeking to have counsel appointed under the Criminal Justice Act, 18 U.S.C. § 3006A, in light of the District Court's referral order, this Court must nonetheless decide whether he is entitled to the appointment of counsel in this instance.
At the outset, it must be observed that "there is neither a constitutional nor statutory right to counsel in habeas proceedings; instead, it is committed to the discretion of the trial court." Morris v. Dormire, 217 F.3d 556, 558 (8th Cir.) (quoting McCall v. Benson, 114 F.3d 754, 756 (8th Cir. 1997)),cert. denied, 531 U.S. 984 (2000); see also Pennsylvania v. Finley, 481 U.S. 551, 555-57 (1987). A habeas corpus proceeding is civil in nature and "the Sixth Amendment's right to counsel afforded for criminal proceedings does not apply." Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994) (quoting Boyd v. Groose, 4 F.3d 669, 671 (8th Cir. 1993)).
A court, however, may appoint counsel for a pro se petitioner seeking federal habeas relief when "the interests of justice so require." Hoggard, 29 F.3d at 471; see also § 3006(A)(a)(2)(B). If the court conducts an evidentiary hearing, the interests of justice require the appointment of counsel. Rule 8(c) of the § 2254 Rules ("if an evidentiary hearing is warranted, the judge must appoint an attorney to represent a petitioner who qualifies to have counsel appointed under 18 U.S.C. § 3006A." (emphasis added)); see also Roney v. United States, 205 F.3d 1061, 1063 (8th Cir. 2000); Johnson v. Weber, Civ. No. 05-4062, 2006 WL 704842 at *10 (D.S.D. Mar. 20, 2006). If no evidentiary hearing is necessary, the appointment of counsel is discretionary. Hoggard, 29 F.3d at 471; Johnson, 2006 WL 704842 at *10.
In exercising its discretion, a court should first determine whether the habeas petitioner has presented a non-frivolous claim. Abdullah v. Norris, 18 F.3d 571, 573 (8th Cir.), cert denied, 513 U.S. 857 (1994). If the petitioner has presented only claims that are frivolous or clearly without merit, the court should dismiss the case on the merits without appointing counsel. Rule 4 of the § 2254 Rules; Abdullah, 18 F.3d at 573. If the petitioner has presented a non-frivolous claim, the court should then determine whether, given the particular circumstances of the case, the appointment of counsel would benefit the petitioner and the court to such an extent that "the interests of justice so require it." § 3006A(a)(2)(B); Nachtigall, 48 F.3d at 1081;Abdullah, 18 F.3d at 573. In determining whether the appointment of counsel is necessary for a petitioner seeking habeas relief with non-frivolous claims, the court should consider the legal and factual complexity of the case, the petitioner's ability to investigate and present claims and any other relevant factors.McCall, 114 F.3d at 756; Hoggard, 29 F.3d at 471.
Applying these factors to the case at hand, the Court concludes that the interests of justice do not require the appointment of counsel. The claims Whitepipe raises in his Petition and Reply, while not frivolous or plainly devoid of any colorable merit on their face, are, nevertheless, not ones that involve complex legal or factual issues or ones that require further fact investigation. McCall, 114 F.3d at 756; Hoggard, 29 F.3d at 471-72. It is evident that Whitepipe understands the issues involved and is capable of articulating them. Id. His Petition and Reply are well written and contain proper citations to applicable legal authorities so as to enable the Court to determine whether federal habeas relief is warranted. Nachtigall, 48 F.3d at 1082. Finally, Whitepipe's claims can easily be resolved on the basis of the state court record. Hoggard, 29 F.3d at 472; Johnson, 2006 WL 704842 at * 10. For these reasons, the Court finds it unnecessary to appoint counsel for Whitepipe and declines to do so.
IV.
The District Court, in its referral order, directed that this Court determine whether an evidentiary hearing was required on Whitepipe's Petition ("the above-entitled action is hereby referred . . . for the purpose of . . . conducting any necessary hearings, including evidentiary hearings. . . ."). Whitepipe has requested an evidentiary hearing and the Court is duty bound, under Rule 8 of the § 2254 Rules, to decide if an evidentiary hearing is mandated or otherwise called for here.
On page 6 of his Reply, Whitepipe asserts that he is "entitled to a hearing on his petition for habeas corpus."
Section 2254, as amended by the 1996 Anti-Terrorism and Effective Death Penalty Act (AEDPA), places significant limits on the ability of a federal habeas petitioner to challenge a state court decision on the merits and in the use of evidentiary hearings to develop a record in federal court that was never completed and put before the state courts. The section of the AEDPA that controls evidentiary hearings is 28 U.S.C. § 2254(e)(2). This section states as follows:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that —
(A) the claim relies on —
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.
A federal court thus must initially consider whether there is a factual basis for a claim that was developed in state court, a question normally susceptible to a simple yes or no answer.Williams v. Taylor, 529 U.S. 420, 431 (2000). If the answer is "yes" and the petitioner has developed the requisite factual basis for his claim in state court, the AEDPA requires the federal court to defer to the state court's findings of fact. 28 U.S.C. § 2254(e)(1). Significantly, an implicit state court factual determination is tantamount to an express one such that deference is due to either determination. Parke v. Raley, 506 U.S. 20, 35 (1992); Marshall v. Lonberger, 459 U.S. 422, 432-33 (1983).
If, on the other hand, the answer is "no" and it is the petitioner who has "failed" to develop a factual basis for his claim in the course of the state court proceedings and is thus at "fault" for that deficiency, the AEDPA requires him to "satisfy a heightened standard to obtain an evidentiary hearing." Williams, 529 U.S. at 433. Section 2254(e)(2)(A) affords the petitioner the "opportunity to obtain an evidentiary hearing where the legal or factual basis of [his] claims did not exist at the time of the state court proceedings." Williams, 529 U.S. at 436. While the petitioner must be diligent in his attempt to develop the state court record, subsection (e)(2)(A)(ii) does not preclude the granting of an evidentiary hearing where "the facts could not have been discovered, whether there was diligence or not."Williams, 529 U.S. at 435. In this way, subsection (e)(2)(A)(ii) "bears a close resemblance to [subsection] (e)(2)(A)(i), which applies to a new rule [of constitutional law] that was not available at the time of the earlier proceedings." Williams, 529 U.S. at 435. If the petitioner is able to establish that at least one of his claims relies on a new rule of law or a previously unavailable factual scenario, he must then show that he has a "convincing claim of innocence" under subsection (e)(2)(B) to obtain an evidentiary hearing. Williams, 529 U.S. at 435.
Here, the factual basis for some of Whitepipe's claims was sufficiently developed in state court. An evidentiary hearing to further address these claims, is unnecessary and all that is left to be done is for the Court to decide whether the state court was correct in its factual determinations. See § 2254(e)(1).
Similarly, Whitepipe may not now obtain an evidentiary hearing on the claims he failed to develop in state court because he cannot meet the "heightened standard" set forth in § 2254(e)(2). Whitepipe does not assert that any of his undeveloped claims rely on a new, retroactive law. Nor has he shown that the relevant facts underlying any of these claims could not have been readily discovered and/or presented during the state habeas proceedings.
Inasmuch as Whitepipe is unable to satisfy the rigid requirements of § 2254(e)(2)(A), the Court need not reach the question of whether he can establish a "convincing claim of innocence" under subsection (e)(2)(B). Williams, 529 U.S. at 435. This being the case, Whitepipe is not eligible for, much less entitled to, an evidentiary hearing and one will not be held. Cox v. Burger, 398 F.3d 1025, 1030 (8th Cir.), cert. denied, 126 S.Ct. 93 (2005).
Even if a habeas petitioner is able to meet the requirements of § 2254(e), a court, in its discretion, may still refuse to hold an evidentiary hearing if such a hearing would not be meaningful and have the potential to advance one or more of the petitioner's claims. Campbell v. Vaughn, 209 F.3d 280, 287 (3rd Cir. 2000),cert. denied, 531 U.S. 1084 (2001). For the reasons more fully explained below, the Court believes that an evidentiary hearing would not be a warranted use of its discretion under the AEDPA because Whitepipe is not entitled to habeas relief under settled law.
V.
Review of Whitepipe's claims is governed by the AEDPA. "In the interests of finality and federalism, federal courts are constrained by [the] AEDPA to exercise only a `limited and deferential review of underlying state court decisions.'"Evenstad v. Carlson, No. 05-1467, 2006 WL 3436124 at *2 (8th Cir. Nov. 30, 2006) (quoting Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2002), cert. denied, 540 U.S. 1059 (2003)). Federal habeas relief will not be granted on any claim "adjudicated on the merits in State court proceedings unless the adjudication of the claim * * * 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. § 2254(d)(1).
A federal court's first step, then, in evaluating a challenge to a state court's application of the law is to determine what, if anything, the Supreme Court has said on the subject. From there, the court must proceed to carefully review the decision of the state court. Under the AEDPA, that decision will be viewed as "contrary to" clearly established federal law if the state court either "applies a rule that contradicts the governing law set forth [by the Supreme Court]" or "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court" and nevertheless arrives at a different result. Penry v. Johnson, 532 U.S. 782, 792 (2001). As for the "unreasonable application of" inquiry, the federal court should ask whether the state court correctly identified the governing legal rule, but applied it unreasonably to the facts of a particular prisoner's case. Id. Thus, even if the federal court "concludes" that the state court decision applied clearly established federal law incorrectly, relief is appropriate only if the application is also objectively unreasonable. Id. at 793.
The factual findings of the state court may also be challenged in a § 2254 proceeding, but they are subject to an even more deferential review. Relief may be granted if an adjudication by a state court "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." § 2254(d)(2). Factual findings by the state court, however, "shall be presumed to be correct," a presumption that can only be rebutted by "clear and convincing evidence." § 2254(e)(1).
With these standards in mind, this Court turns now to Whitepipe's various claims for relief.
VI.
Whitepipe's first claim, that his statements to Sheriff Wolf should have been suppressed because he was never advised of his rights and did not confess, was waived when his guilty plea was accepted by the trial court, see United States v. Smith, 422 F.3d 715, 724 (8th Cir. 2005), cert. denied, 126 S.Ct. 1112 (2006);State v. Hoeft, 1999 SD 24 ¶ 12, 594 N.W.2d 323, 326, and is a defaulted claim that is unreviewable, see Armstrong v. Iowa, 418 F.3d 924, 925-26 (8th Cir. 2005), cert. denied, 126 S.Ct. 1351 (2006).A petitioner may not obtain federal habeas relief unless he "has exhausted the remedies available in the courts of [his] State." 28 U.S.C. § 2254(b)(1)(A). To exhaust a claim, the petitioner must fairly present his federal claim to the appropriate state courts in the manner required by state law, thereby "afford[ing] the state courts meaningful opportunity to consider [the] allegations of legal error." Vasquez v. Hillery, 474 U.S. 254, 257 (1986); see also Baldwin v. Reese, 541 U.S. 27, 29 (2004) ("Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, . . . thereby giving the State the `opportunity to pass upon and correct alleged violations of its prisoners' federal rights.'").
Where a state court remedy is available for a petitioner's unexhausted claim, the federal habeas court must defer action until the claim is exhausted, either by dismissing the federal petition without prejudice or by using the "stay and abeyance" procedure described in Rhines v. Weber, 544 U.S. 269, 277-79 (2005). If, however, no state remedy is available for the unexhausted claim — that is, if resort to the state courts would be futile — then the claim is considered procedurally defaulted and cannot serve as grounds for federal habeas corpus relief unless the petitioner can demonstrate "cause and prejudice."Armstrong, 418 F.3d at 926; see also Gray v. Netherland, 518 U.S. 152, 161-62 (1996). If the claim is procedurally defaulted, the petitioner must establish either "cause for the default and actual prejudice as a result of the alleged violation of federal law" or "that failure to consider the claim will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991).
The "miscarriage of justice" exception extends primarily to cases in which the constitutional violation "has probably resulted in the conviction of one who is actually innocent."Murray v. Carrier, 477 U.S. 478, 496 (1986); accord Schlup v. Delo, 513 U.S. 298, 324-27 (1995) (holding that the Carrier "probably resulted" standard governs the miscarriage of justice inquiry when a petitioner who has been sentenced to death raises a claim of actual innocence to avoid a procedural bar to the consideration of the merits of his constitutional claim). "Actual innocence" is not an issue in Whitepipe's case.
The record indicates that at no time after being sentenced did Whitepipe alert any state court to the federal nature of his suppression claim. The claim is therefore unexhausted, but because further pursuit of it in state court would be futile,see Hoeft, 1999 SD 24, ¶ 12, 594 N.W.2d at 326; State v. Cowley, 408 N.W.2d 758, 759 (S.D. 1987); SDCL 21-27-16.1 (1983), § 2254(b)'s exhaustion requirement has been met. As such, Whitepipe's failure to exhaust provides an adequate and independent state law ground for his rape conviction and precludes federal review of his claim unless he can demonstrate cause and prejudice for his default. Inasmuch as neither has been shown nor alleged, his claim must be dismissed.
"Ordinarily, a state prisoner does not `fairly present' a claim to a state court if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so." Baldwin, 541 U.S. at 32; see also id. at 31 ("to say that a petitioner `fairly presents' a federal claim when an appellate judge can discover that claim only by reading lower court opinions in the case is to say those judges must read the lower court opinions — for otherwise they would forfeit the State's opportunity to decide that federal claim in the first instance. In our view, federal habeas corpus law does not impose such a requirement."). Providing guidance to habeas petitioners on this subject, the Supreme Court observed that:
A litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state court petition or brief, for example, by citing in conjunction with the claim, the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim "federal."Id. at 32.
Although Whitepipe appealed the trial court's denial of his suppression motion to the state supreme court, he did not raise, or otherwise assert, a federal law violation or apprise that court of the federal basis for his suppression claim. His appellate brief did not (unlike his Abel Assessment claim), "explicitly . . . refer to a federal claim" or "refer to provisions of the Federal Constitution", "provide[d] no citation of any case that might have alerted the [supreme] court to the alleged federal nature of the claim," and "did not even contain a factual description supporting the claim." Id. at 33. Under these circumstances, and consistent with Baldwin, it cannot be said that Whitepipe complied with the "fair presentation" requirement of the exhaustion rule. Baldwin, 541 U.S. at 30-33; Duncan v. Henry, 513 U.S. 364, 365-66 (1995).
But, even assuming, arguendo, that Whitepipe's suppression claim is reviewable, the same is without merit. The trial court's factual findings are not clearly erroneous, especially without a transcript of the suppression hearing to judge them against. The findings reveal that:
1. Whitepipe was advised of his rights, waived them and agreed to talk to Sheriff Wolf;
2. His interview with the Sheriff lasted no more than 30 to 45 minutes;
3. There was no evidence of sleep or food deprivation, promises, coercion, threats, false representations or trickery;
4. Prior to the interview, he knew he was going to jail pursuant to a "pick up and hold" that had been lodged against him by his probation officer;
5. He at no time during the interview ever invoked any of his rights;
6. He was 42 years old at the time, had more than two years of college education and was not of low intelligence; and
7. He had a prior criminal history and had experience with law enforcement, including the Sheriff himself.
Based on these findings, the court concluded that Whitepipe's statements were knowingly, voluntary, and intelligent and that they were made after a valid waiver of his rights. The court considered the State's burden of proof (which at the time was beyond a reasonable doubt) and the voluntariness of Whitepipe's statements in light of the totality of the circumstances, including his background and experience, and concluded that his will had not been overborne and that his ability to make an unrestrained, autonomous decision had not been critically impaired.
The state court's factual determinations are presumed to be correct, see § 2254(e)(1), and they are not unreasonable in view of the evidence presented in the state court proceedings, see § 2254(d)(2). Nor did the factual determinations result in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law. See § 2254(d)(1). Accordingly, federal habeas relief cannot be granted to Whitepipe on his suppression claim. See § 2254(d).
VII.
Whitepipe's second claim, that the prosecutor violated his right to due process by filing a habitual offender enhancement, was never presented to any of the state courts. The claim was never raised in Whitepipe's direct appeal to the state supreme court or in either his state habeas petition or amended petition. Because Whitepipe's claim is procedurally barred under state law,see SDCL 21-27-16.1, and that bar provides an independent and adequate basis for upholding Whitepipe's conviction and because no cause or prejudice for his default or actual innocence has been shown, his claim is not cognizable in federal court. Armstrong, 418 F.3d at 425-27.
Procedural default of a claim under state law may constitute an adequate and independent state law ground that precludes federal review, see Harris v. Reed, 489 U.S. 255, 262 (1989), but only if the state procedural rule is firmly established, regularly followed and readily ascertainable, see Ford v. Georgia, 498 U.S. 411, 423-24 (1991). Having reviewed SDCL 21-27-16.1 and case law from the state supreme court interpreting it, this Court is satisfied that these requirements have been met. See Goodroad v. Weber, 2003 SD 132, ¶¶ 4, 6, 671 N.W.2d 838, 839-40; Jackson v. Weber, 2001 SD 136, ¶ 11, 637 N.W.2d 19, 22; Gregory v. Class, 1998 SD 106, ¶¶ 24-25, 584 N.W.2d 873, 880; Application of Novaock, 1998 SD 3, ¶¶ 6, 12, 572 N.W.2d 840, 842, 844; Ashker v. Class, 534 N.W.2d 66, 67-69 (S.D. 1995); Gregory v. Solem, 449 N.W.2d 827, 829-33 (S.D. 1989).
In a belated attempt to establish "cause" sufficient to excuse his procedural default, Whitepipe claims that trial counsel's failure to object to, or move for a dismissal of, the habitual offender information was constitutionally ineffective assistance. Yet the Supreme Court has made clear that a federal habeas court is barred from considering an ineffective assistance of counsel claim as "cause" for the procedural fault of another claim where, as here, the ineffective assistance claim is itself procedurally defaulted. Edwards v. Carpenter, 529 U.S. 446, 448, 450-53 n. 3 (2000); Evans v. Luebbers, 371 F.3d 438, 445-46 (8th Cir.), cert.denied, 543 U.S. 1067 (2004); Adams v. Ault, No. C99-2110-MWB, 2001 WL 34008477 at **8-12 (N.D. Iowa Oct. 3, 2001); see also Williams v. Kenna, 311 F.3d 895, 897-98 (8th Cir. 2002) (procedural default was not excused by alleged ineffective assistance of appellate counsel in failing to raise lack-of-presence claim on direct appeal). Whitepipe has offered no excuse for the procedural default of his ineffective assistance claim, the very claim he uses to excuse his defaulted due process claim. Brownlee v. Haley, 306 F.3d 1043, 1065-67 (11th Cir. 2002); Dellinger v. Bowen, 301 F.3d 758, 766-67 (7th Cir. 2002), cert. denied, 537 U.S. 1214 (2003). Nor has he demonstrated that there is a reasonable probability that the outcome of his case would have been different had counsel challenged the validity of the habitual offender information.
In Strickler v. Greene, 527 U.S. 263, 289-90 (1999), the Supreme Court clarified that the prejudice prong of Strickland, 466 U.S. at 694 (1984) is co-terminous with the prejudice required to overcome a procedural default under Wainwright v. Sykes, 433 U.S. 72, 87 (1977) and its progeny. See Mincey v. Head, 206 F.3d 1106, 1147, n. 86 (11th Cir. 2000), cert. denied, 532 U.S. 926 (2001); Prou v. United States, 199 F.3d 37, 49 (1st Cir. 1999).
Regardless, Whitepipe's due process claim is devoid of any factual or legal basis. He raped Hacker while on probation for a forgery offense for which he received a suspended imposition of sentence. Under South Dakota law, a suspended imposition of sentence is considered a prior conviction for purposes of determining whether a defendant is a habitual offender and subject to an enhanced sentence. See SDCL 23A-27-15 (1978); see also State v. Winchester, 438 N.W.2d 555, 555-56 (S.D. 1989) (suspended imposition of sentence for driving under the influence offense may be used to enhance penalty for subsequent driving under the influence violation).
Aside from this, it is important to remember that Whitepipe initiated the plea negotiations that led to his guilty plea at trial and that the product of these negotiations was the dismissal of all but one of the rape charges, and resulted in him avoiding a kidnapping conviction and a potential sentence of life imprisonment without parole. Plainly, there was no deprivation of due process under these circumstances. Whitepipe's claim that there was something improper about bartering away enhanced sentences and/or dismissing other charges in exchange for a guilty plea to one, borders on the absurd. His claim is meritless.
VIII.
Whitepipe's third claim is that he is entitled to federal habeas relief because the State committed a Brady violation by withholding medical reports and testimony of Dr. Two Hawks. Whitepipe contends that the reports and testimony were used in the State's case in chief, that his trial counsel was not given the reports or advised of what Dr. Two Hawks would testify to and that he could not form a defense to this evidence and prove that the same was exculpatory. What Whitepipe ignores, or turns a blind eye to, is the fact that he entered into a plea agreement and pled guilty to the rape charge before Dr. Two Hawks was scheduled to testify.Whitepipe initially raised this claim in the state habeas proceedings, but later abandoned it. He did not present the claim on direct appeal or in his motion for a certificate of probable cause after the state habeas court ruled against him. His claim, therefore, is unexhausted. Because he is procedurally barred under South Dakota law from filing a successive petition, see SDCL 21-27-16.1, dismissal is warranted unless he can show cause and prejudice for his default. Armstrong, 418 F.3d at 925-27. His after-the-fact claim that both trial and habeas counsel were ineffective for not raising and/or pursuing his Brady claim, does not provide him with the requisite "cause" to excuse his defaulted Brady claim (especially when the ineffective assistance claim itself is also an unexcused defaulted claim). Edwards, 529 U.S. at 450-53 n. 3; ante at 17-18. Nor does it satisfy theStrickland prejudice standard required to overcome the procedural bar caused by his default. Strickland, 466 U.S. at 694. And, with respect to his ineffective assistance of habeas counsel claim, the Sixth Amendment right to counsel does not extend to state post-conviction proceedings. Coleman, 501 U.S. at 752; Finley, 481 U.S. at 555-56; Armstrong, 418 F.3d at 927.
In any event, dismissal of Whitepipe's Brady claim is called for because there is no merit to it. Trial counsel testified that the prosecutor had informed counsel of the substance of Dr. Two Hawks' testimony. That testimony concerned cervical injuries or bruises to Hacker that were inflicted by something too hard to be natural. Counsel knew, before trial, that Dr. Two Hawks had examined Hacker, but was unable to schedule an interview. Counsel, though, was told by the prosecutor that he would have an opportunity to talk to Dr. Two Hawks privately before she testified. The record contains no indication that the medical records and contemplated testimony from Two Hawks were in any way exculpatory. The record, however, does reveal that Whitepipe admitted that he inserted a beer bottle into Hacker's vagina.
"[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Banks v. Dretke, 540 U.S. 668, 691 (2004) (quoting Brady v. Maryland, 373 U.S. 83, 87 (1963)). The Brady rule applies to evidence which "impeaches the credibility of a government witness," Dye v. Stender, 208 F.3d 662, 665 (8th Cir. 2000), whether or not the accused has specifically requested the information. Kyles v. Whitley, 514 U.S. 419, 433-34 (1995). Evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Kyles, 514 U.S. at 433-34 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). "A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." Bagley, 473 U.S. at 682.
Inasmuch as Whitepipe has neither alleged nor shown that the evidence from Dr. Two Hawks was favorable to him and that it would create a reasonable probability of a different outcome, such evidence was not material under Brady. He therefore cannot prevail on his claim.
IX.
Whitepipe's fourth claim, namely, that he was coerced into pleading guilty because Sheriff Wolf was permitted to call additional venirepersons and because there were no Native American Indians on the master jury list or among those venirepersons who were later called, must likewise fail.
Generally, once a defendant pleads guilty, he cannot raise independent claims involving constitutional deprivations, including those based on the legality of the jury selection process, that occurred prior to the entry of the guilty plea.Tollett v. Henderson, 411 U.S. 258, 266-67 (1973); see also United States v. Castillo, 464 F.3d 988, 989-90 (9th Cir. 2006);Thundershield v. Solem, 565 F.2d 1018, 1026-27 (8th Cir. 1977),cert. denied, 435 U.S. 954 (1978). Where, as here, the defendant had counsel and the record plainly demonstrates that the juror related claims are unfounded, his guilty plea must stand.
On the first day of trial, the trial court informed Whitepipe and trial counsel that there was a shortage of prospective jurors and more needed to be called:
Bryan, I don't know how much time you've had to visit with [trial counsel], we have done a couple of things this morning that I think that we need to place on the record. When we all got here this morning, we discovered that there are 57 prospective jurors on the list to be called. Each attorney gets 20 peremptories, we need to seat 13 jurors, because we will pick one alternate. So that is 53 people that need to come up. Well, that only leaves four people in the audience to draw from if we have challenges for cause, and so that is a problem. State law provides, and what we did, that the Sheriff can round up folks to serve as jurors. We had Charlie Wolf come in, who is the Gregory County Sheriff, he indicated that he was not comfortable drawing the names of prospective jurors since he is a witness in this case. And so his secretary is going through the phone book randomly, getting 10 prospective jurors from Bonesteel-Fairfax, 10 perspective jurors from Gregory, 10 prospective jurors from Burke. The attorneys and I met and decided that was a fair and appropriate way to keep the — to follow State law, by having the Sheriff pick the jurors, without him influencing who comes in. So, we are going to end up with this jury list, plus 30 additional jurors.
No objections were voiced to this procedure. The Sheriff's secretary then proceeded to randomly select additional prospective jurors from phone listings, without the Sheriff being involved in this process, a matter that trial counsel discussed with Whitepipe. Whitepipe only expressed concern about the Sheriff being involved in the augmentation process, and was informed that the Sheriff would not be an actual participant in the same. In fact, the Sheriff remained in the courtroom area and did not involve himself in the process at all.
One of the supplemental venirepersons summoned was actually the Sheriff's mother (she and the Sheriff had different last names), who was promptly excused without further ado. Her presence, if anything, indicates that the Sheriff was not a personal participant in the selection process.
Significantly, trial counsel testified that the method used by the trial court to augment the jury pool was similar to that which had been used in another case counsel was involved in and that he considered the method to be in accord with SDCL 16-13-31 (1972). Whitepipe's testimony, that counsel had told him that all of the jurors from the master list had been dismissed, that the venire was being selected from a phone book and that no Native Americans in the county owned cell phones, is either untrue or an exaggeration. The record does not show that all of the prospective jurors from the initial panel were in fact removed. And, to say that there were no Native Americans in the county who owned phones (or had phone listings) is, if nothing else, a stretch.
This statute provides, in pertinent part, that no irregularity or omission invalidates a petit jury panel unless it is made to appear, to the satisfaction of the court for which the panel was drawn, that there was misfeasance or malfeasance so as to deprive the person charged with a crime of a substantial right.
Whitepipe maintained that the presence of the Sheriff's mother intimidated him to the point where "It made me feel like giving up, like a sitting duck, like they were just out to get me. And at that point I just — I knew that I didn't have a fair fight or a fair trial." The Sheriff's mother, however, was excused without objection at the conclusion of an in-chambers hearing held during voir dire and outside the presence of the other prospective jurors.
In those instances where a sheriff participates in the investigation of a defendant's case and also selects by stander jurors based on subjective criteria, the defendant's right to a fundamentally fair trial is violated. Anderson v. Frey, 715 F.2d 1304, 1309 (8th Cir. 1983), cert. denied, 464 U.S. 1057 (1984);Henson v. Wyrick, 634 F.2d 1080, 1081, 1084-85 (8th Cir. 1980),cert. denied, 450 U.S. 958 (1981). Where, however, the individual who selects the bystander jurors was not involved in investigating the case and uses objective criteria in doing so, the process does not deprive the defendant of his constitutional rights. Cody v. Solem, 755 F.2d 1323, 1335 (8th Cir.), cert. denied, 474 U.S. 833 (1985); Russell v. Wyrick, 736 F.2d 462, 464 (8th Cir. 1984), cert. denied, 469 U.S. 1219 (1985); Holt v. Wyrick, 649 F.2d 543, 546 (8th Cir. 1981), cert.denied, 454 U.S. 1143 (1982).
In the present case, this Court is unable to find that the process used to select additional venirepersons denied Whitepipe of his constitutional rights. Such persons were chosen objectively, from a phone book, and not from some list of "approved" individuals. Further, and perhaps more importantly, the Sheriff did not personally execute the trial court's order, but rather delegated this responsibility to his secretary, who was not involved in the investigation or prosecution of Whitepipe. The bystander juror process that was utilized in Whitepipe's case, therefore, did not violate any of his rights.Coury v. Livesay, 868 F.2d 842, 845 (6th Cir. 1989).
Furthermore, and in contrast to Whitepipe's testimony, trial counsel related that he had analyzed the racial makeup of the original master jury list with that gleaned from county-published records and came up with certain percentages. With these percentages in mind, counsel looked at and factored in the apparent races of the additional prospective jurors and concluded that the venire "either met or exceeded the accepted ratio of Native Americans to non-Native American[s]." Not having produced any reliable data or statistics relating to Gregory County or to the jury selection in his own case, Whitepipe has failed to establish that he was a victim of racial under-representation and, as such, deprived of his federal constitutional rights. His claim that the telephone listing methodology prejudiced him because it unfairly excluded Native Americans is speculative at best and insufficient to establish a prima facie case of discrimination. Singleton v. Lockhart, 871 F.2d 1395, 1397-99 (8th Cir.), cert. denied, 493 U.S. 874 (1989) (telephoning African Americans); State v. Aesoph, 2002 SD 71, ¶ 43-45, 647 N.W.2d 743, 757-58 (inadequate proof that sheriff's contacting Native Americans in certain communities resulted in racial imbalance).
Significantly, trial counsel testified that Whitepipe never gave any indication to counsel, at any time, that Whitepipe had concerns with the jury selection process after being informed that the Sheriff would not be involved in the same:
Q. But my question is, was it explained to Mr. Whitepipe that it was someone other than [the Sheriff] who was making the selections?
A. Yes, yes, because then after I talked to [the Sheriff], I went back and told Bryan, and he nodded okay with the selection or going out and picking up, contacting these people.
Q. And other than this concern about [the Sheriff] possibly being involved in the process, did he give you any other objection as to the overall jury selection process?
A. No.
The state habeas court denied Whitepipe's claim. In its findings of fact, the court noted that Whitepipe did not object to the jury panel supplementation, raise any other "structural" error or complain that the supplementation was a cause or catalyst for his decision to plead guilty. The court found that Whitepipe's decision to plead guilty was based on the quality of the State's evidence and his desire to limit his exposure to a possible life sentence. Moreover, the court specifically found that Whitepipe's "newly-made claim" that an improperly-selected jury was the impetus for his decision to plead guilty [was] not credible." The court concluded that Whitepipe's guilty plea was made knowingly, intelligently and voluntarily, with the advice of counsel, and that by virtue of his plea, he waived any objections he may have had to the structure of the jury panel or to the jury selection process. The court's findings are presumptively correct and did not result in a decision that was contrary to or that involved an unreasonable application of salient federal law or a decision that was unreasonable in light of the evidence of record. Whitepipe is therefore not entitled to relief on his jury selection claim.
X.
For his fifth claim, Whitepipe contends that he should have been allowed to withdraw his guilty plea because the State failed to live up to its obligations under the plea agreement. This claim, however, was never presented in Whitepipe's direct appeal to the state supreme court or in his state habeas case. Nor was it raised as part of his motion for a certificate of probable cause to the supreme court. His procedural default is an adequate and independent state-law ground for preventing federal habeas corpus review absent a showing of cause and prejudice for the default. Armstrong, 418 F.3d at 926-27.
Once again, Whitepipe tries to excuse his default by claiming that trial and habeas counsel were ineffective. The ineffective assistance claim he now raises, however, is itself a defaulted claim and does not provide him with the "cause" and "prejudice" needed to overcome the procedural bar that exists with respect to his original defaulted (breach of the plea agreement) claim.Edwards, 529 U.S. at 450-53 n. 3; Strickland, 466 U.S. at 694;ante at 17-19.
Yet even if the underlying claim is justiciable, it nonetheless lacks merit and cannot succeed. Whitepipe maintains that the prosecutor breached the plea agreement by failing to recommend an indeterminate prison term of no less than five years and no more than fifteen years at sentencing. To bolster his position, Whitepipe has attached a partial transcript of page 38 of the sentencing transcript. Pages 37 and 39 of the transcript, however, make clear that the statement Whitepipe refers to on page 38 is part of his trial counsel's sentencing argument, not a promise or statement made by the prosecutor.
At the change of plea hearing, the trial court and Whitepipe engaged in this brief colloquy:
THE COURT: It is also my understanding that the State will not recommend a number of years — the number of years in the Penitentiary. But that they will get to submit to the Court any argument or evidence as to any aggravating factors, is that your understanding?
THE DEFENDANT: Yes.
The custody aspect of the plea agreement was delved into further with trial counsel in the state habeas case:
Q. — tell us as well as you can what the offer was, including any terms that were included.
A. She [the prosecutor] would drop the habitual offender, dismiss everything but one count of rape. She would not make a request for any number of years for sentence, but she reserved the opportunity to offer aggravation testimony.
Q. Did that change at all from when you brought it to Mr. Whitepipe until the deal was agreed to?
A. I think I went back to her to try to get it to change, and she would not change it.
Q. During any of these discussions, was there any mention of this indeterminate five to fifteen-year period that Mr. Whitepipe has testified to?
A. The only time that that probably was discussed again was back with the original plea agreement when we did talk about indeterminate and on that five-year sentence is when his testimony regarding maybe serve six months came out when we had that discussion.
Q. When was that?
A. That would have been during the summer.
Q. That was?
A. Not during — not at the time of trial.
It is evident from the testimony quoted above, that there was no promise, such as the one Whitepipe insists was broken, ever made during or in connection with the October 31, 2002 plea agreement.
It is well established that when a guilty plea rests on a promise made by the prosecutor, so that it can be said to be part of the inducement or consideration for the plea, that promise must be fulfilled. Santobello v. New York, 404 U.S. 257, 262 (1971); see also United States v. Fowler, 445 F.3d 1035, 1037 (8th Cir. 2006). Hoek v. Weber, 2006 SD 102, ¶¶ 12-25, 2006 WL 3409279 at **2-5. Yet where, as a matter of fact, the plea agreement does not contain the promise alleged to have been made and broken, no due process violation exists and habeas relief may be properly denied. Trussell v. Bowersox, 447 F.3d 588, 591 (8th Cir.), cert.denied, No. 06-6320, 2006 WL 2593029 (U.S. Nov. 13, 2006).
XI.
As his sixth ground for relief, Whitepipe claims that his guilty plea was not a knowing and voluntary one because he had not been informed of the consequences of such a plea, including the requirement that he would have to register as a sex offender. Whitepipe, however, did not present this claim in his direct appeal, in either of his state habeas court petitions or in his probable cause certificate to the state supreme court. Because SDCL 21-27-16.1 suffices as an independent and adequate state procedural bar to Whitepipe's federal claim and because the "cause" he alleges to overcome his procedural default (ineffective assistance of trial and habeas counsel) is nothing more than another unexcused defaulted claim, his plea advisement claim has not been preserved and must be dismissed.Edwards, 529 U.S. at 450-53 n. 3; Strickland, 466 U.S. at 694;ante at 17-19.
Notwithstanding this, Whitepipe's claim is factually and/or legally insufficient and provides him with no basis for relief. When canvassing Whitepipe about the terms of the plea agreement and determining that he understood them, the trial court fully advised him of his rights, including the rights he would be giving up by pleading guilty, before accepting his plea:
THE COURT: All right. The Court would accept that plea agreement. Mr. Whitepipe, I've gone over your rights with you several times, but I'm going to go over those rights with you again today. If you have any questions about these rights, I would be happy to answer them for you, or give you additional time to talk to [trial counsel], either about these rights or about your case.
You have a right to know the charges against you and the maximum possible sentence. You have a right to plead not guilty and to make the State prove what it says you did. The State must prove each element of the charges [sic] against you beyond a reasonable doubt. You are presumed innocent. You never have to prove you are innocent. You have a right to a speedy, public trial before a Judge or a jury picked from the voter and driver's license list in Gregory County. At a trial, each of the 12 jurors would have to agree unanimously you are guilty before you could be found guilty. You cannot be called to testify if you want to remain silent. This is your privilege against self-incrimination. On the other hand, you can testify if you want to, and you could offer evidence and call witnesses on your own behalf. If a witness would refuse to come to court, I can issue a subpoena and require that witness to appear anyway. You have a right to be present at your trial, in person and in open court, to confront and cross-examine the witnesses against you.
You have the right to an attorney, and if you cannot afford an attorney, to have one appointed at public expense. Of course, this would not be free as you would be required to repay any court appointed attorney's fees, and those fees would become a lien against any property that you own.
But, if you plead guilty to this charge, you would be found guilty just as if you had a trial, and you would give up the rights which I have just explained. If you are convicted, you have a right to appeal within 30 days after the judgment is filed to the South Dakota Supreme Court.
Mr. Whitepipe, do you understand these rights?
THE DEFENDANT: Yes.
THE COURT: Do you have any questions?
THE DEFENDANT: No.
The trial court allowed Whitepipe time to confer with trial counsel about the charge and granted Whitepipe additional time to talk to counsel after Whitepipe requested it. When asked, Whitepipe stated that he understood what he was charged with doing, the maximum penalty he faced and the possibility of restitution and court costs being ordered as part of any sentence imposed. Whitepipe indicated that he was ready to enter his plea and proceeded to plead guilty to the rape charge. The court then questioned Whitepipe to determine whether his plea was voluntary:
THE COURT: Did anyone force you to enter that plea?
THE DEFENDANT: No.
THE COURT: Did anyone tell you, other than this plea agreement, that I would give you special treatment if you just came in today and pled guilty?
THE DEFENDANT: No.
THE COURT: And you are doing this under your own free will?
THE DEFENDANT: Yes.
To be constitutionally valid, a guilty plea must be knowing, voluntary and intelligent. See Parke, 506 U.S. at 28, 29 (holding that a "guilty plea must be both knowing and voluntary" and must be a "voluntary and intelligent choice among the alternative courses of action" available to a defendant). Because a guilty plea constitutes a waiver of three constitutional rights — the right to jury trial, the right to confront one's accusers, and the privilege against self-incrimination — it must be made "with sufficient awareness of the relevant circumstances and like consequences." Brady v. United States, 397 U.S. 742 (1970). While a guilty plea taken in open court is not immune from collateral attack in a post-conviction proceeding, a defendant's representations, made during a plea hearing, carry a strong presumption of verity, Blackledge v. Allison, 431 U.S. 63, 74 (1977), and pose a "formidable barrier in any subsequent collateral proceedings," Nguyen v. United States, 114 F.3d 699, 703 (8th Cir. 1997) (quoting Voytik v. United States, 778 F.2d 1306, 1308 (8th Cir. 1985)).
Here, the trial court's plea advisement was sufficient and Whitepipe's responses to the court's inquiries belie the assertions he now makes. The rearraignment transcript, together with Whitepipe's age, education and experience with the criminal justice system convincingly establish that Whitepipe knowingly, voluntarily and intelligently pled guilty.
It is of no moment that Whitepipe was not advised that he would have to register as a sex offender. An overwhelming majority of courts, including the South Dakota Supreme Court, that have considered the issue have concluded that a sentencing court's failure to advise a defendant about registration as a sex offender is not grounds for withdrawal of a guilty plea because registration is a collateral, not a direct, consequence of conviction. State v. Timperley, 1999 SD 75, ¶ 17, 599 N.W.2d 866, 869;Commonwealth v. Leidig, 2004 Pa. Super. 167, ¶¶ 12-16, 850 A.2d 743, 747-48; State v. Moore, 135 N.M. 210, 216-18, 86 P.3d 635, 641-43 (N.M.App. 2004); see also Roe v. Farwell, 999 F.Supp. 174, 182-83 (D. Mass. 1998); Kaiser v. State, 641 N.W.2d 900, 902-07 n. 12 (Minn. 2002); State v. Schneider, 263 Neb. 318, 324, 640 N.W.2d 8, 13 (2002); see generally Licia A. Esposito, Annotation, State Statutes or Ordinances Requiring Persons Previously Convicted of Crime to Register with Authorities, 36 A.L.R.5th 161, § 9 (1996). Failure to advise Whitepipe of the registration requirement did not render his guilty plea involuntary or unintelligent so as to require the withdrawal of his plea.
For these reasons, Whitepipe's claim is without merit and must be denied in its entirety.
XII.
As his seventh claim, Whitepipe asserts that the trial court abused its discretion and violated his due process rights when it ordered a sexual offender evaluation, not mandated by state statute, be included in his presentence investigation report. This claim is unfounded and misapprehends applicable state and federal law.
Whitepipe's presentence report contained a sexual offender evaluation prepared by Dr. Donald A. Janz, a clinical psychologist. The evaluation included a testing process called the Abel Assessment for Sexual Interests. This Assessment indicated that Whitepipe showed a chronic, objectively measured sexual interest in preschool aged females and that he appeared to be "characteristically similar" to men who have molested female children outside of their own families. In this evaluation, Dr. Janz recommended, among other things, that Whitepipe not be allowed to be alone with children under the age of 18 years and that this restriction be revisited after Whitepipe successfully completed sex offender treatment.
Prior to sentencing, Whitepipe filed a motion to exclude Dr. Janz's sex offender evaluation. The trial court subsequently conducted an evidentiary hearing and denied Whitepipe's motion.
Within constitutional and statutory limits, South Dakota state trial courts are given broad discretion when deciding the extent and kind of punishment to be imposed on a criminal defendant.State v. Grosh, 387 N.W.2d 503, 508 (S.D. 1986). To assist courts in the exercise of their discretion, a presentence investigation report may be ordered containing such information about the defendant's "characteristics, his financial condition, and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of a defendant, and such other information as may be required by the court." SDCL 23A-27-6 (1978). SDCL Ch. 23A-27, however, does not limit what information a state trial court can obtain and consider in connection with sentencing. Grosh, 387 N.W.2d at 508-09. Rather:
[T]he sentencing judge may exercise wide discretion with respect to the type of information used as well as its source. He should have full access to the fullest information possible concerning the defendant's life and characteristics. Information which should be available to the court includes general moral character, mentality, habits, social environment, tendencies, age, aversion or inclination to commit crime, life, family, occupation, and previous criminal record. A sentencing judge's access to information should be almost completely unfettered in order that he may acquire a thorough acquaintance with the character and history of the man before him. . . . The presentence report may rest on hearsay and contain information bearing no relation what[so]ever to the crime with which the defendant is charged. Due process does not require that the scope of information reviewed by the sentencing judge be controlled by the rules of evidence, and consideration of out-of-court information and hearsay evidence is not precluded.Id. (citations omitted).
The fact that the trial court was under the misperception that state law required a sexual offender evaluation for Whitepipe because he had been convicted of rape, is of little, if any, consequence. The court clearly had the authority under state law to order the evaluation, whether it was mandated or not. See SDCL 23A-27-6; Grosh, 387 N.W.2d at 508-09. And, after conducting a hearing on Whitepipe's motion, the court observed that the Abel Assessment portion of the evaluation was not a diagnostic tool, but rather, was an apparatus to be used for considering treatment options, and for determining the validity of the information supplied by him during his clinical interview. Matters such as these are well within the purview of information that can and should be considered as part of the sentencing process. At worst, given the limited utility of the Abel Assessment noted by the court, any error committed was harmless.
Moreover, in the habeas context, rules of evidence and trial procedure are usually matters of state law and a federal issue is raised only where the alleged error infringes on a specific constitutional protection or is so prejudicial as to amount to a denial of due process. Bucklew v. Lubbers, 436 F.3d 1010, 1018 (8th Cir.), cert. denied., No. 06-6054, 2006 WL 2462725 (U.S. Dec. 4, 2006); see also Evenstad, 2006 WL 3436124 at **3-4. Neither is the case here, as the trial court had discretionary authority to order a sexual offender evaluation under state law, and then made limited use of it. The state supreme court rejected Whitepipe's claim in its summary affirmance of his rape conviction, and the supreme court's decision was neither contrary to nor involved an unreasonable application of, federal law. See Evenstad, 2006 WL 3436124 at **3-4.
XIII.
Whitepipe's eighth and final claim, that he had to plead guilty because of racial animus, is not supported by the record. The State's evidence at trial showed that he committed the rape offense he was charged with and pled guilty to and that Hacker, his victim, was herself, Native American. His testimony that the trial was rigged and racially biased from the beginning of jury selection was not credible, given his own changing stories, and was contrary to the testimony of trial counsel, as the state habeas court found. That court's refusal to accept Whitepipe's contradictory testimony, a factual issue, is entitled to due deference under § 2254(e)(1). Whitepipe's decision to plead guilty was based on the strength of the State's case and his desire to minimize his sentencing exposure. Racial animus and discrimination did not enter into the picture until after the fact (i.e. after his guilty plea was accepted), when "buyer's remorse" evidently set in. Whitepipe's claim is entitled to no more credence now than that which the state courts earlier gave to it — nothing.
XIV.
Based on the foregoing findings of fact and legal discussion and pursuant to § 636(b) and Rule 8(b) of the § 2254 Rules, it is hereby
RECOMMENDED that Whitepipe's Petition under § 2254 for a writ of habeas corpus be denied in all respects and that the case be dismissed with prejudice.