Graham v. State of South Dakota
ORDER granting 35 Motion for Leave to file sur-reply ; denying 30 Motion to Dismiss. Signed by U. S. District Judge Lawrence L. Piersol on 3/5/14. (SLW)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
MAR 0 5 201~
* MEMORANDUM OPINION AND
MOTION TO DISMISS
Respondent Doug Weber has moved to dismiss John Graham's (Graham) petition for writ of
habeas corpus which was filed under 28 U.S.C. § 2254. Graham opposes the motion. For the
following reasons, the motion to dismiss will be denied.
On January 26,2011, a jury convicted Graham of felony murder of Annie Mae Aquash in
violation ofSDCL 22-16-9. He was acquitted ofpremeditated murder. The South Dakota Supreme
Court affirmed Graham's conviction on May 30,2012. State v. Graham, 815 N.W.2d 293 (S.D.
2012). Graham's petition for state habeas corpus relief was denied on the merits, and a certificate
of probable cause was not issued. (Doc. 31-1.) Graham timely filed a pro se motion for certificate
ofprobable cause with the South Dakota Supreme Court pursuant to 21-27-18.1. (Doc. 31-2). On
July 24, 2013, the South Dakota Supreme Court issued an Order to Show Cause indicating that it
appeared service of the motion for certificate of probable cause was not "'made upon both the
attorney general and the appropriate state's attorney' when the motion was made" as required by
SDCL 21-27-18.1. (Doc. 31-3.) The court directed Graham to show cause why the appeal should
not be dismissed for failure to make proper service of the motion for certificate of probable cause.
(/d.) Graham responded:
My failure to serve the opposing party when I filed the motion with the Supreme
Court was due to the extreme time pressure was excusable neglect. I am a pro se
petitioner and the court denied my request for appointed counsel. An out of state
attorney Mr. Paul Wolf agreed to help me with a federal Habeas Corpus petition but
not the state petition and I am unable to pay any attorney in So. Dakota to help me.
Mr. Wolfcalled numerous attorney's and spoke to fourteen So. Dakota attorney's on
the phone for me but I was not able to raise enough money to hire even the least
I received the circuit court order on July 3rd, mailed it to Mr. Wolf on the first
available mail day after the 4th ofJuly long weekend, Monday July 8th. The envelope
was postmarked July 10th, Mr. Wolf received it on July 15th, he wrote a motion for
me that same night and sent it to me priority mail the next morning July 16th, I
received it on Thursday July 18th. Since the twenty day time limit expired on
Saturday and I couldn't be sure the prison legal worker would be available on Friday
the 19th, I sent it to the Supreme Court the same day I received it on July 18th. The
court should consider this excusable neglect since I have no assistance ofcounsel and
I thought that filing the motion on time was the priority.
A pro se prisoner's habeas corpus petition is considered filed on the date he delivers
it to prison officials for mailing to the district court. Bum's v. Morton, 134 F.3d 109,
113 (3rd Cir. 1998). The Supreme Court should consider the filing ofthis motion the
same way. The failure of service should only result in a dismissal without prejudice.
Ouzts v. Cummins, 825 F.2d 1276, 1278 (8th Cir. 1987). The court should consider
my failure to serve the opposing party as without prejudice and consider my petition
on the merits particularly since it concerns issue ofstate law that are better heard in
a state habeas Petition than in a federal Petition.
(Doc. 31-4.) Respondent argued that the motion for certificate ofprobable cause should be dismissed
because Graham did not show cause for failing to serve the motion when he filed it with the Supreme
Court. (Doc. 31-5.) On September 9, 2013, the South Dakota Supreme Court issued an order
dismissing the motion for certificate ofprobable cause "for failure to serve a copy ofthe motion upon
the opposing party, this service being a prerequisite to the Court's jurisdiction to consider said motion
pursuant to SDCL 21-27-18.1." (Doc. 31-6.)
Graham timely filed his federal habeas petition. Respondent argues the petition should be
dismissed because Graham procedurally defaulted all ofhis habeas claims by failing to advance them
properly through the South Dakota courts. Graham objects to dismissal and requests a ruling on the
merits ofhis claims.
"A claim is procedurally barred when it has not been fairly presented to the state courts for
their initial consideration...." Cone v. Bell, 556 U.S. 449, 467 (2009). Procedural default prevents
federal court review ofa state court decision that rests on "independent and adequate state procedural
grounds." Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). This rule applies to bar federal
habeas claims that a state has declined to consider because of the prisoner's failure to satisfY a state
procedural requirement. See id. "[A] habeas petitioner who has failed to meet the State's procedural
requirements for presenting his federal claims has deprived the state courts of an opportunity to
address those claims in the first instance." Id. at 732. "In the absence of the independent and
adequate state ground doctrine in federal habeas, habeas petitioners would be able to avoid the
exhaustion requirement by defaulting their federal claims in state court." Id.
The "procedural default" doctrine was explained by the Eighth Circuit in White v. Bowersox
Procedural default of a claim under state law may constitute an independent and
adequate state ground, Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103
L.Ed.2d 308 (1989), but only if the state procedural rule is firmly established,
regularly followed, and readily ascertainable. Ford v. Georgia, 498 U.S. 411,423-24,
111 S.Ct. 850, 112 L.Ed.2d 935 (1991). The underlying principle is "that failure to
follow state procedures will warrant withdrawal of a federal remedy only if those
procedures provided the habeas petitioner with a fair opportunity to seek relief in
state court." Easter v. Endell, 37 F.3d 1343, 1347 (8th Cir. 1994). Or, as Justice
Holmes expressed it, "[w]hatever springes the State may set for those who are
endeavoring to assert rights that the State confers, the assertion of federal rights,
when plainly and reasonably made, is not to be defeated under the name of local
practice." Davis v. Wechsler, 263 U.S. 22, 24, 44 S.Ct. 13,68 L.Ed. 143 (1923).
White v. Bowersox, 206 F.3d 776, 780 (8th Cir. 2000).
The "adequacy" ofa state procedural rule is a question offederallaw. Sloan v. Delo, 54 F.3d
1371, 1379 (8th Cir. 1995). A state law rule is "adequate" to defeat federal habeas review ifthe rule
is clear, does not thwart the assertion of federal rights, and is both firmly established and regularly
followed. Id. at 1379-80. "[S]tate procedural rules not strictly or regularly followed may not bar
[federal court] review." Dixon v. Dormire, 263 F.3d 774, 781 (8th Cir. 2001) (quoting Ford, 498
U.S. at 424).
Here, Respondent argues that the South Dakota Supreme Court denied Graham's habeas
claims on the independent and adequate ground that Graham failed to serve the motion for certificate
of probable cause simultaneously with its filing as required by SDCL 21-27-18.1. 1 Even assuming
that Graham, a pro se petitioner, should have interpreted the statute as requiring simultaneous filing
and service of his motion, it certainly is not clear from the statute or case law that Graham's motion
would be dismissed by the South Dakota Supreme Court for lack ofjurisdiction ifhe did not serve
the motion immediately. Respondent has not cited one other case, and the Court's own legal research
revealed no other cases, where the South Dakota Supreme Court dismissed a motion for certificate
ofprobable cause for lack ofjurisdiction because it was not served at the time offiling.2 There is no
showing that such a rule was firmly established, regularly followed, or readily ascertainable prior to
its application in Graham's case. The fact that the South Dakota Supreme Court had the authority
to decide it lacked jurisdiction over Graham's motion for certificate ofprobable cause because he did
not serve the motion when he filed it is not sufficient to bar Graham's federal habeas claims. See
Easter, 37 F.3d at 1345-46 (Rule 37 ofthe Arkansas Rules ofCrirninal Procedure did not meet the
lThis Court does not agree with Respondent that the service deadline is stated clearly and
unambiguously in SDCL 21-27-18.1. The statute states, in relevant part:
However, a party may, upon the circuit court judge's refusal to issue a certificate of
probable cause, file a separate motion for issuance of a certificate of probable cause
with the Supreme Court within twenty days ofthe entry ofthe circuit judge's refusal.
Any party filing a motion with the Supreme Court shall serve a copy of the motion
upon the opposing party, who shall have ten days to respond ....
Service of either a motion for a certificate ofprobable cause or of an appeal must be
made upon both the attorney general and the appropriate state's attorney when the
motion is made or the appeal is taken by the party seeking the habeas corpus relief.
2The Court acknowledges that the South Dakota Supreme Court dismisses motions for
certificate ofprobable cause that are untimely filed with the court, Hannon v. Weber, 638 N.W.2d 48,
50 (SD 2001), but there is no dispute that Graham's motion was filed on time.
due process requirement of"adequacy" to bar Easter's federal habeas claim because the state did not
demonstrate the rule was firmly established when it was applied to Easter); see also White, 206 F.3d
at 781 ("Even though a rule appears in retrospect to form part of a consistent pattern ofprocedures,
it should not be applied as a procedural default if the defendant could not be deemed to have been
apprised ofits existence."). Thus, this Court concludes that the state "rule" is not adequate to defeat
federal review of Graham's habeas claims because the state rule was not firmly established or
There is another reason to conclude that Graham's failure to simultaneously file and serve his
motion for certificate of probable cause does not constitute an adequate state law ground to deny
federal habeas review. In "exceptional cases ... exorbitant application of a generally sound rule
renders the state ground inadequate to stop consideration ofa federal question." Lee v. Kemna, 534
U.S. 362, 376 (2002). In Lee, a criminal defendant moved for a delay ofhis trial when he discovered
that his three alibi witnesses could not be found in the courthouse though they had been present
earlier in the day. Id. at 369. The court denied his motion based on the court's limited schedule and
availability, and also because the court thought the witnesses had abandoned Lee. Id. at 370. Lee did
not call any defense witnesses and he was convicted. The Missouri Court of Appeals affirmed the
lower court's denial of Lee's petition for habeas relief. Id. at 372. It held that Lee defaulted his
claims because he did not comply with a state rule that motions for delay in trial must be made in
writing and accompanied by an affidavit. Id. at 372-73. Lee filed a federal habeas petition. The
federal district court and the Eighth Circuit held that the state procedural rule was an adequate and
independent state law ground barring federal review under the doctrine ofprocedural default. Id. at
The United States Supreme Court reversed, holding that application of this technical
requirement was an exorbitant application of Missouri's rule. Id. at 376.
"Three considerations, in combination," led the Supreme Court in Lee "to conclude that this
case [fell] within the small category ofcases in which asserted state grounds are inadequate to block
adjudication of a federal claim." Id. at 381. First, Lee's perfect compliance with the rule would not
have altered the outcome because the trial court denied the continuance for scheduling reasons and
based on its perception that the witnesses abandoned Lee. Id. Second, there was no case law that
directed perfect compliance with the rule in the unique circumstances ofLee's case, i.e. ''the sudden,
unanticipated, and at the time unexplained disappearance of critical, subpoenaed witnesses on what
became the trial's last day." Id. at 382. Third, "and most important," id., Lee substantially complied
with the "essential requirements" ofthe rule, which were intended to provide information needed by
the trial court to rule on the motion. Id. at 385. The trial court and opposing counsel had all ofthe
information that was needed to address Lee's motion for a continuance because Lee had referred to
the witnesses' testimony in voir dire, opening statement, and every day oftrial. Id. at 383-84. Thus,
the state rule requiring a written motion and affidavits served "no perceivable state interest," and did
not bar federal habeas review. Id. at 378.
In the present case, the South Dakota Supreme Court's decision to dismiss Graham's motion
for certificate ofprobable cause based on lack ofjurisdiction for failing to simultaneously serve and
file the motion was exorbitant. Over the course of the proceedings, Graham consistently followed
filing deadlines, including timely filing his motion for certificate ofprobable cause. There is no reason
to think that he had an ulterior motive when he failed to serve the motion. Before the Supreme Court
dismissed his motion, Graham served the motion and corrected the procedural default caused by his
failure to serve the motion at the time of filing.
Second, the Respondent has presented no case, nor has the Court's research revealed one,
where the South Dakota Supreme Court relied on a petitioner's late service ofa timely-filed motion
for certificate of probable cause to dismiss the motion for lack ofjurisdiction.
Finally, and "most important," Lee, 534 U.S. at 382, the state interest in having petitioners
serve their motions for certificate ofprobable cause at the time of filing is not sufficient to preclude
federal consideration of Graham's habeas claims because Graham's timely-filed motion notified the
South Dakota Supreme Court ofhis constitutional claims and gave the state court an opportunity to
allow Graham to serve the motion on Respondent and to address his motion on the merits. How state
interests were promoted by dismissing Graham's motion is unclear. "Where it is inescapable that the
defendant sought to invoke the substance of his federal right, the asserted state-law defect in form
must be more evident than it is here." Lee, 534 U.S. at 385 (quotation omitted).
The combination ofthese factors leads the Court to conclude that the South Dakota Supreme
Court's application ofthe dismissal "rule" in this case was exorbitant, and does not bar federal review
of Graham's habeas claims. There is no procedural default because there is no adequate state law
ground barring federal habeas review.
As the parties point out in their briefs, federal courts can also review procedurally defaulted
claims ifthe petitioner can show "cause for the default and prejudice from a violation offederallaw."
Trevino v. Thaler, - - - U.S. - - -,133 S.Ct. 1911,1917 (2013) (quotation omitted). Because there
is no adequate state law ground, there is no procedural default and the Court does not need to
consider cause and prejudice. Accordingly,
IT IS ORDERED:
That the motion to dismiss Graham's habeas petition for procedural failure, Doc. 30,
That Graham's unopposed motion to file sur-reply, Doc. 35, is granted, and
Respondent may file a short sur-sur-reply within 14 days after receipt of this Order.
That the Court will now consider Graham's habeas petition on the merits.
Dated this 5th day of March, 2014.
BY THE COURT:
awrence L. Piersol
District Court Judge
JOSEPH HAAS, CL~
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