Graham v. State of South Dakota

Filing 49

MEMORANDUM OPINION AND ORDER DENYING 1 APPLICATION FOR WRIT OF HABEAS CORPUS. A certificate of appealability will be issued only as to claim one: that the state court lacked jurisdiction because the felony murder charge does not satisfy the "dual criminality" requirement of the United States-Canada Extradition Treaty. Signed by U.S. District Judge Lawrence L. Piersol on 10/26/16. (DJP)

FILED
UNITED STATES DISTRICT COURT
\

OCT 2 6 2016

DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

^!|!******** ************** * ****************************
*

JOHN GRAHAM,

*

CIV 13-4100

*

Petitioner,
-vs-

*
*
*

DARIN YOUNG,Warden,

MEMORANDUM OPINION AND
ORDER DENYING APPLICATION

* FOR WRIT OF HABEAS CORPUS
*

Respondent.

*
*

****************************************************

Petitioner, John Graham,is an inmate at the South Dakota State Penitentiary. Hefiledapro

se application for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on September 17, 2013.'
Respondent Darin Young has moved for summary judgment, asserting the state court correctly
denied Graham's habeas claims. Respondent has submitted for the Court's review the relevant state

court records and transcripts ofthe underlying state court criminal trial. For the following reasons,
the writ will be denied.

BACKGROUND

In February 1976, Anna Mae Aquash's remains were found in a remote area ofthe Badlands
near Wanblee in South Dakota. In 2003, Graham,a Canadian citizen, was charged in federal court

with premeditated murder of Aquash. In 2007, Graham was extradited to South Dakota from
Canada. The federal murder charge was dismissed by this Court because the indictment failed to

allege Graham's Indian status, and the Eighth Circuit affirmed. See United States v. Graham,572
F.3d 954(8th Cir. 2009). In 2009,Graham was indicted by a Pennington County grand jury on state

'Paul Wolf, a lawyer not licensed to practice law in South Dakota, assisted Graham in writing

his petition. On October 30,2013,Chase Iron Eyes,amember ofthe South Dakota Bar,filed a notice
of appearance as attomey for Graham. Paul Wolf was admitted to practice in this Court pro hac vice
on November 5, 2013.