Blakney v. Young et al
Filing
18
OPINION AND ORDER granting in part 13 Motion to Dismiss. Signed by U.S. District Judge Roberto A. Lange on 03/27/2019. (SAC) MAILING Order to Christopher Blakney via USPS(SAC).
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
CHRISTOPHER WILLIAM BLAKNEY,
4:17-CV-04022-RAL
Plaintiff,
OPINION AND ORDER GRANTING IN PART
MOTION TO DISMISS
vs.
DARIN YOUNG,WARDEN,SOUTH DAKOTA
STATE PENITENTIARY; and JASON
RAVNSBORG,ATTORNEY GENERAL OF THE
STATE OF SOUTH DAKOTA,
Defendants.
Plaintiff Christopher William Blakney (Blakney) filed a petition for habeas corpus under
28 U.S.C. § 2254(b) against Darin Young, in his capacity as Warden of the South Dakota State
Penitentiary, and Marty J. Jaekley^, in his capacity as Attorney General of the State of South
Dakota, alleging that his incarceration pursuant to a state court revocation of suspended sentence
violates his constitutional right to due process. Doc. 1. This Court previously granted in part a
motion to dismiss, allowing those claims which Blakney exhausted in state court to proceed in
federal court and dismissing Blakney's remaining unexhausted claims as frivolous. Doc. 11.
Defendants then filed a motion to dismiss on the merits. Doc. 13.
I.
Judicial notice of state court files.
^ Under Federal Rule of Civil Procedure 25(d), the newly elected Attomey General of South
Dakota, Jason Ravnsborg, is automatically substituted as the party defendant for former Attomey
General Marty Jackley.
I
Part of what the Defendants filed alerted this Court to Blakney's related habeas case against
Darin Young filed in state court in 2016,as Minnehaha County civil case 16-859,in which Blakney
makes claims of a violation of Bradv v. Maryland and of an illegal or ambiguous sentence. Doc.
8-27. This Court was interested in the status of Blakney's state court habeas case because of the
deferential nature of federal court review of a state court conviction under 28 U.S.C. § 2254, and
because ofthe preference for state courts to correct constitutional defects in state convictions first
to avoid the "unseemly" disruption of state judicial proceedings through premature federal court
intervention. Rose v. Lundv. 455 U.S. 509, 518 (1982)(quoting Darr v. Burford. 339 U.S. 200,
204(1950)). Thus, this Court wanted to see the outcome of Minnehaha County civil case 16-859
to determine whether any state court ruling had granted relief to Blakney or would impact this
Court's review.
In seeking out public information on Minnehaha County civil case 16-859, a law clerk for
this Court learned of other civil cases filed in state court by Blakney challenging his detention and
sentence. The Minnehaha County Clerk of Court then sent to this Court's Clerk of Court all filed
pleadings and transcripts in Blakney's two most recent Minnehaha County criminal cases, 11-4923
and 11-4924, as well as all pleadings filed in Minnehaha County civil cases, 16-859,17-2981,181596,18-2633. These files are on what is called the"N" drive ofthe District of South Dakota, not
subject to public view in order to protect personal identifying information—^names ofjuveniles,
dates of birth of Blakney and possibly others, and addresses—^that might appear in some
pleadings.^ These files are public information available through the Minnehaha County Clerk of
2 When citing these materials,this Court will reference the state court criminal or civil case number
followed by the date of the pleading or transcript when not otherwise clear from the text of this
Opinion and Order. This Court will use "Doc. "to reference whether and where in the public
CM/ECF system of this Court the document cited may be found.
2
Court, consisting of pleadings and documents filed by Blakney, the Defendants, the state court
(transcripts and orders), and the Minnehaha County State's Attorney.
With Blakney proceeding pro se and with limited records submitted by the Defendants,
this Court believed it appropriate to take judicial notice of the state court records now on this
Court's "N" drive under Rule 201 of the Federal Rules of Evidence. Under Rule 201(b), the
Minnehaha County Clerk of Court's official records ofBlakney's criminal and civil cases are "not
subject to reasonable dispute" and from a source "whose accuracy cannot reasonably be
questioned." Fed. R. Evid. 201(b). Under Rule 201(c),this Court"may take judicial notice on its
own," and under Rule 201(d) may do so "at any stage of the proceeding." Id, 201. Rule 201(e)
entitles the parties to be heard on the propriety oftaking judicial notice. Id,201(e). Accordingly,
this Court, on February 22, 2019, issued an Order, Doc. 16, giving the parties fourteen calendar
days within which to object to this Court taking judicial notice of Minnehaha County criminal files
11-4923 and 11-4924, and of Miimehaha County civil files 16-859, 17-2981, 18-1596, and 18-
2633. Neither Blakney nor the Defendants objected, so this Court now takes judicial notice of
those state case files in order to provide a full recount ofthe procedural and substantive background
of Blakney's convictions, sentences, revocations, incarceration, and challenges thereto.
II.
Blakney's state court history.
A. Initial criminal cases and sentences.
Blakney's state-court odyssey relating to claims in this § 2254 case began with his
indictment in two separate Minnehaha County criminal cases on September 1,2011. State CR 114923; State CR 11-4924. In one case, Blakney was charged with second degree rape allegedly
perpetrated on July 16,2011, ofthen sixteen-year-old J.K.G. State CR 11-4923. In the other case,
Blakney was charged with one count of second-degree rape, one count of aggravated assault, and
three counts of simple assault for allegedly raping his girlfriend, T.S., threatening her with a
boxcutter, and committing other domestic assaults against her, all on August 2, 2011. State CR
11-4924; Doc. 8-1. In both criminal cases, the state's attorney filed a Part II information for
habitual criminal based on Blakney's four prior felony convictions, including three grand theft
convictions in 1996 and 1997, and a possession ofcontrolled substance felony conviction in 2010.
State CR 11-4923; State CR 11-4924; Doc. 8-2.
Blakney, with the assistance of counsel, reached a plea agreement to resolve the charges in
both of his state criminal cases. Under the plea agreement, Blakney entered an Alford plea.^
Consistent with the plea agreement, the Honorable Robin J. Houwman on November 30, 2011,
accepted Blakney's guilty plea to a class-one misdemeanor in State CR 11-4923 of simple assault
on J.K.G. Judge Houwman sentenced Blakney in State CR 11-4923 on that same date (although
memorialized in ajudgment and sentence dated December 29,2011)to incarceration of364 days,
suspended upon conditions that Blakney commit no class-one misdemeanors or greater for a period
oftwo years, commit no violent offenses for a period oftwo years, have no contact with the victim
for a period of two years, pay certain costs, and comply with terms of a two-year probationary
period. Relatedly, in State CR 11-4924, consistent with the plea agreement, Blakney pleaded
guilty before Judge Houwman on November 30,2011,to just the aggravated assault count and was
sentenced on the same day. A judgment and sentence dated December 29, 2011, memorializes
that Blakney received in State CR 11-4924 a sentence of thirteen years, suspended on the
performance of fourteen listed conditions. As matters most directly to Blakney's present § 2254
case, condition one stated:
^ An Alford plea is named after the case of North Carolina v. Alford. 400 U.S. 25 (1970), under
which a defendant pleads guilty not upon an admission to the facts ofthe crime, but admitting that
the prosecutor has sufficient evidence to make the charge and obtain a conviction.
4
1. That the defendant sign and abide by the standard supervised probation
agreement with the Court Services Department for twenty-four(24)months.
Doc. 8-3. In turn, paragraph one ofthe standard supervised probation agreement provided:"You
shall obey all federal, state, and tribal laws and municipal ordinances." Doc. 8-4. Blakney's other
conditions of suspended sentence included that he serve 120 days in the Miimehaha County Jail,
with credit for 97 days previously served, that he pay certain costs and fees, that he submit to drug
and alcohol testing, and that he use no controlled substances. State CR 11-4924; Doc. 8-3. Three
ofthe final terms for the suspended sentence were the following:
11. That the defendant complete any evaluation, counseling, anger management
or participation in 24/7 program as directed by the Court or the Court Services
Officer.
12. That the defendant commit no class one misdemeanors or greater for a period
often(10) years.
13. That the defendant commit no violent offenses for a period often(10) years.
State CR 11-4924;Doc. 8-3. As a consequence ofthe plea agreement,the charges in the indictment
in State CR 11-4923 and in counts one, three, four, and five in State CR 11-4924 were dismissed.
B. Prior revocation petitions and reversal of imposition of suspended sentence.
Blakney faced his first motion to revoke suspended sentence on January 17, 2012, based
on a violation report concerning a positive test for methamphetamine use. State CR 11-4923; State
CR 11-4924. That motion to revoke suspended sentence, however, was dismissed on January 25,
2012. State CR 11-4923; State CR 11-4924.
With regard to State CR 11-4924 only, Blakney faced a second motion to revoke suspended
sentence filed on November 14,2012. State CR 11-4924; Doc. 8-5. The violation report set forth
that Blakney had completed an assessment at Compass Center, and his probation officer had
direeted him to follow a reeommendation to participate in a sex offender program, but Blakney
had refused to do so. State CR 11-4924; Doc. 8-5. On April 20, 2013, the Honorable Patrieia
Riepel revoked Blakney's suspended sentence due to his failure to complete a sex offender
evaluation and imposed the suspended sentence of thirteen years with credit for 196 days served.
State CR 11-4924; Doc. 8-6. Blakney appealed the revocation of his sentence to the Supreme
Court of South Dakota. Doc. 8-7. The Supreme Court of South Dakota split 3-2 with the majority
voting to reverse the revocation of the suspended sentence because there was no condition in his
sentence that Blakney undergo sex offender evaluation or attend a sex offender program and
because there consequently had been an improper delegation ofsentencing authority to a probation
officer to impose such conditions on Blakney after sentencing. State v. Blaknev. 851 N.W.2d 195,
199-200(S.D. 2014); Doc. 8-12. The two dissenting justices believed that Blakney had failed to
adequately preserve the issue below. Blaknev, 851 N.W.2d at 200-01; Doc. 8-12.
Judge Riepel on remand entered an order vacating the revocation ofthe suspended sentence
on July 30, 2014. State CR 11-4924; Doc. 8-13. Blakney had been in state custody during the
pendency ofthat revocation and appeal. By July 30,2014, more than two years had passed since
Judge Houwman had sentenced Blakney back on November 30,2011, and since Judge Houwman
signed the judgment on December 29, 2011. Blakney likely had completed his initial 120-day
sentenee around December 29,2011. Under South Dakota law, Blakney's probationary period in
State CR 11-4923 and under condition one of the conditions of suspended sentence in State CR
11-4924 appears to have run. S^ SDCL § 23A-27-19.1 (listing circumstances under which
probationary periods may be tolled, but not listing as a circumstance time a defendant sits in
custody prior to a reversal of an improper imposition of suspended sentence); see also Doc. 8-24
at 23 (State appellate brief acknowledging Blakney on "unsupervised probation" after two-year
period ran).
C. Current revocation of suspended sentence.
The State revoked Blakney's suspended sentence a second time due to Blakney's behavior
on October 31,2014. There is no dispute of material fact as to what occurred on October 31,2014,
but issues only on whether Blakney received due process and whether the evidence was sufficient
to support revocation.
The initial procedural oddity with Blakney's most recent revocation ofsuspended sentence
relates to the condition initially alleged to have been violated. In State CR 11-4924, the motion to
revoke suspended sentence attached a violation report contending that Blakney had violated the
first paragraph of the conditions of adult probation that "You shall obey all federal, tribal, state
laws and municipal ordinances." Doc. 8-16. The terms of adult probation, however, were
incorporated into conditions of Blakney's suspended sentence pursuant to paragraph one of the
judgment and sentence imposed on November 30, 2011 and formalized in writing on December
29, 2011—^that Blakney "abide by the standard supervised probation agreement with the Court
Services Department for twenty-four(24) months." Doc. 8-3. The behavior on October 31,2014
fell outside of the 24-month period regardless of whether it began on November 30, 2011, or on
December 29, 2011.
Judge Riepel again presided over the motion to revoke the suspended sentence and
appointed counsel for Blakney. The state court held an advising and bond hearing on November
10, 2014, advising Blakney ofthe allegation that his arrest on October 31,2014 for simple assault
and driving while revoked was a violation of condition one of his release. Doc. 8-17. Blakney
denied the violation and an evidentiary hearing on the motion to revoke suspended sentence
occurred on December 9, 2014. At that hearing Blakney's counsel argued that the condition
alleged for revocation ofthe suspended sentence—^that he abide by conditions of probation for 24
months, which in tum required obeying all state laws and municipal ordinances—did not apply to
him in October of 2014. Blakney appears to have first raised that issue after Judge Riepel heard
testimony from the three witnesses at the revocation hearing. See Doc. 8-18 at 35-37.
Again,there is little factual dispute about what occurred on October 31, 2014, and most of
the testimony during the December 9, 2014 hearing was not contested. In October of 2014,
Blakney was living with Sharrie Kilmer in a household that included her 17-year-old daughter
D.K. During the morning of October 31, 2014, Kilmer was getting ready for work, and Blakney
became angry with her."^ Kilmer had moved from her bedroom into the bathroom, and Blakney
had followed her, continuing to argue in a raised voice. Kilmer's daughter, D.K., who had seen
Blakney be physical with her mother previously, chose to go into the bathroom to be with her
mother.^ Blakney told D.K. to get out ofthe bathroom, and as D.K. put it, she copped an attitude
by saying "whatever." Blakneyjumped up from where he was sitting on the toilet and confronted
D.K. saying "what did you say to me?" D.K. then left the bathroom and was in the process of
shutting the door with her fingers in the area where the door knob was, with the bulk of her hand
on the outside portion of the door and the ends of her fingers on the inside portion of the door.
Meanwhile, Blakney turned away from the door to face Kilmer and continue the argument.
Blakney then horse kicked the bathroom door with his back to it. The door slammed shut on
D.K.'s fingers and she screamed in pain. Blakney was immediately apologetic saying that he did
not mean to hurt her. Blakney did not hit Kilmer that day. D.K. went to the emergency room
because her fingers were badly bruised, although they were not broken. Lincoln County Sheriffs
Kilmer during the evidentiary hearing could not recall why there was an argument. While
speaking with police on October 31, 2014, however, Kilmer said that the argument started when
Blakney probed why she had missed a meeting with a counselor, heard Kilmer explain that she
had called the coimselor to cancel the meeting,then learned by reviewing Kilmer's phone log that
she had not in fact called the counselor, and thereafter confronted Kilmer about lying to him.
^ There was a house rule about only smoking in the bathroom, and Blakney's counsel suggested
that D.K. came into the bathroom to smoke a cigarette.
8
Deputy E.J. Colshan arrested Blakney on a simple assault charge after Blakney had left for work
that day. Deputy Colshan learned that Blakney was driving with a license that was revoked^ and
cited him on that offense as well. After receiving a Miranda warning, Blakney spoke voluntarily
with Deputy Colshan and confirmed what had occurred.
Following this testimony at the hearing on the motion to revoke,Blakney had no witnesses.
Doc. 8-18 at 33. The State argued that condition one had heen violated by Blakney acting
recklessly to commit simple assault and driving with a revoked license, both of which would be
state or municipal law violations. Doc. 8-18 at 33-34. Blakney's counsel countered that the twoyear period applicable to condition one had expired and that no violation could be found. Doc. 818 at 35-36. Judge Riepel then raised the possibility of the State amending the grounds of the
motion to revoke to include other grounds than violation of condition one, the State sought to do
so, and Blakney's counsel objected. Doc. 8-18 at 37-38. Judge Riepel offered Blakney an
opportunity to call other witnesses. Doc. 8-18 at 40-41. Blakney's counsel objected based on a
due process violation and argued that Blakney kicking the door was not a criminal offense and that
regardless no class-one misdemeanor conviction nor a violent offense conviction supported
revocation of the suspended sentence based on condition number twelve or thirteen (two of the
additional groimds suggested for revocation). Doc. 8-18 at 45-49. Judge Riepel explained why
she thought there was a basis for Blakney's conduct to be a class-one misdemeanor and deemed
simple assault to have been committed under SDCL § 22-18-1(2) by recklessly causing bodily
injury. Doc. 8-18 at 49-51. Judge Riepel ruled that Blakney violated an implied condition of
® Judge Riepel later determined that she could not accept Deputy Colshan's testimony about
Blakney's license being revoked because it was hearsay being offered for the truth of the matter
asserted. Doc. 8-18 at 40.
good behavior for a suspended sentence^ and conditions twelve and thirteen of the conditions of
suspension of the sentence. Doc. 8-18 at 51. Judge Riepel deferred ruling on whether driving
while having a revoked license could support revocation. Doc. 8-18 at 51-52.
Although the evidentiary hearing on the motion to revoke concluded on Decemher 9,2014,
■with an apparent decision from Judge Riepel to revoke the suspended imposition of sentence based
on violations of paragraphs one, twelve, and thirteen of the prior judgment and an implied
condition of good behavior, the formal amended motion to revoke suspended sentence was not
filed until April 24, 2015. State CR 11-4924; Doe. 8-19. The underlying criminal file. State CR
«
11-4924, reflects that after the December of 2014 evidentiary hearing. Judge Riepel held additional
hearings on April 24,2015; June 5,2015; and June 12, 2015. State CR 11-4924. The hearings on
April 24 and June 5 were relatively brief and non-evidentiary, and the sentencing on the revocation
ofthe suspended sentence occurred on June 12,2015. Judge Riepel signed a bench-order judgment
of conviction and penitentiary sentence on June 12, 2015, imposing the thirteen-year sentence,
with 898 days credited; Judge Riepel entered a formal order revoking suspended sentence then on
June 30, 2015. Doe. 8-20; Doc. 8-21. Blakney filed a notice of appeal. Doc. 8-22.
At the Jime 12 sentencing hearing, Blakney's attorney and Judge Riepel had a discussion
ahout the basis on which Judge Riepel was revoking the suspended imposition of sentence.
Blakney's counsel and Judge Riepel differed on whether the specific violations were addressed at
the evidentiary hearing, and whether Blakney was aware that the State was proceeding to allege
violations of conditions twelve and thirteen of the suspended imposition of sentence at the time of
the evidentiary hearing. Judge Riepel summarized her prior ruling and her reasoning as follows:
^ Judge Riepel was drawing this implied condition from state decisions such as In re Adams. 360
N.W.2d513 (S.D. 1985), and State v. Holter. 340N.W.2d691 (S.D. 1983).
10
So it's a strict violation of probation based upon what I found at the hearing
[on December 9, 2014], violation of condition number 1, obey all state and federal
laws. I further found that he violated the other conditions of his probation,
subsection 12 and 13.
Now,the Supreme Court can say one of two things, that because the State
didn't put 13 and 14 [sic, should be 12 and 13] in that initial motion that the Court
couldn't have made a ruling on that. I'm still saying that I am entitled to find him
in violation ofthe law based on the faet that he is on probation and he's required to
obey all laws and I think that's the way it is.
The fact that he now -the State had filed an amendment and you're asking
me to recuse myself,I'm going to deny that. We have had a contested hearing and
I have sat on the case and I am going to proceed on the case.
State CR 11-4924, June 12, 2015 sentencing, at 9. Blakney's counsel argued that there were no
convictions from Lincoln County for any of Blakney's behavior on October 31, 2014, and Judge
Riepel responded by questioning whether there was a need for an actual conviction to revoke the
suspended imposition of sentence. Id. at 23.
Blakney's appeal from this second revocation ofsuspended sentence to the Supreme Court
of South Dakota included arguments by Blakney's counsel that Judge Riepel's handling of the
revocation of the suspended sentence violated Blakney's due proeess rights in several respeets.
Doc. 8-23; Doc. 8-25. The State in its brief acknowledged that "[a]ll parties agreed defendant was
on imsupervised probation at the time the State filed the Motion to Revoke Suspended Sentence."
Doc. 8-24 at 23. That is, the State effectively aeknowledged that Blakney's formal two-year period
of probation had run under the conditions of adult probation and condition one ofthe sentence in
State CR 11-4924. The State argued that nevertheless under conditions twelve and thirteen, there
were grounds to revoke the suspended sentence. Doc. 8-24. The Supreme Court of South Dakota
affirmed summarily without opinion on November 14, 2016. Doc. 8-26.
D. Blakney's State post-sentence civil cases.
Blakney has filed a number of civil cases in state court challenging and concerning his
convictions and sentences. In State CIV 16-859, Blakney filed a state court habeas corpus petition
11
contending that his conviction on State CR11-4923 was based on a Brady violation. In connection
with that case, Blakney filed a copy of an email dated August 26, 2011, ostensibly sent by the
sixteen-year-old alleged rape victim, J.K.G., reading "I need to know how to go about to drop all
charges on cgris [sic] blakney .. it was consentual [sic] sex." For the sake of context, the grand
jury indictment was dated September 1, 2011, and reflected that J.K.G. testified to the grand jury.
This Court of course does not know if J.K.G. did or did not author that email. The Honorable
Joseph Neiles declined to grant state habeas relief because the probationary time on the simple
assault conviction arising from State CR 11-4923 had run, and the habeas corpus filing was not in
front ofthe original judge and did not name the warden. Judge Neiles noted as well that the State
was asserting that the victim either did not send the email or recanted its claims. State CIV 16859.
Blakney then brought a similar claim in State CIV 18-1596 as a writ of coram nobis to the
original sentencing judge. Judge Houwman.
Judge Houwman denied the writ, writing
"[rjegardless of whether the prosecutor possessed this email or whether it should have been
disclosed to the defense. Petitioner plead guilty to Simple Assault, not the original Rape charge."
Blakney attempted to appeal from the denial of writ ofcoram nobis. It appears that the appeal was
dismissed for improper service ofthe notice of appeal. State CIV 18-1596.
Blakney also has filed a civil case, State CIV 18-2633, that challenges the parole board's
determination of his initial parole eligibility date. That administrative appeal does not impact the
issues in this § 2254 case.
As it relates to Blakney's issues surrounding his revocation ofthe suspended imposition of
sentence, Blakney filed a state court petition for writ of habeas corpus as State CIV 17-2981.
There, Blakney alleges ineffective assistance of counsel and that his sentence was ambiguous and
12
internally contradictory in violation of his Fifth and Fourteenth Amendment rights to due process.
That case has proceeded slowly, ■with delays in the appointment and then recusal of counsel for
Blakney.
III.
Discussion
This Court previously ruled that Blakney exhausted grounds two, three, four, six, seven,
eight, and nine of his § 2254 habeas corpus petition. Doc. 11. Those seven exhausted claims can
be grouped as raising three general challenges: 1) that the state court lacked jurisdiction and thus
offended due process by proceeding to revoke Blakney's suspended sentence after the two-year
probationary period ended; 2) that the state court violated due process by proceeding on condition
one (which had expired) and not conducting a preliminary hearing on conditions twelve and
thirteen later used by the state court to revoke the suspended sentence; and 3) that there was
constitutionally insufficient evidence to conclude that Blakney had violated any of the conditions,
let alone committed a class-one misdemeanor or a violent offense under conditions twelve and
thirteen.
A. Applicable law.
When a claim has been adjudicated on the merits in a state court, a petition for writ of
habeas corpus under § 2254 cannot be granted unless the state court adjudication:
(1) 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; or
(2) 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.
28 U.S.C. § 2254(d). To make a showing that a state court made an unreasonable determination
of the facts, a petitioner must present clear and convincing evidence that "the state court's
13
presumptively correct factual finding lacks evidentiary support." Trussed v. Bowersox,447 F.3d
588, 591 (8th Cir. 2006).
The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) present distinct
questions. Bell v. Cone. 535 U.S. 685,694(2002)rdting Williams v. Tavlor. 529 U.S. 362,40405 (2000)). A state court's legal determination is contrary to federal law if it reaches the opposite
conclusion of the Supreme Court on a question of law, or if, when confronting materially
indistinguishable facts as a case decided by the Supreme Court, it reaches a different conclusion.
Williams. 529 U.S. at 405. If a state court correctly identifies the controlling legal principle, but
applies it to the facts of a case in an unreasonable manner, then the decision nms afoul of the
"unreasonable application" clause of§ 2254(d)(1). Id at 407-08. "[A]n unreasonable application
of federal law is different from an incorrect application of federal law." Harrington v. Richter.
562 U.S. 86, 101 (2011) (quoting Williams. 529 U.S. at 410). This is a "highly deferential
standard" that is "difficult to meet." Cullen v. Pinholster. 563 U.S. 170, 181 (2011)(citations
omitted). Evaluation of a state court's application of federal law focuses on "what a state court
knew and did... measured against [the Supreme] Court's precedents as of'the time the state court
render[ed] its decision.'" Id at 182 (quoting Lockver v. Andrade. 538 U.S. 63, 71-72 (2003)).
"If a claim has been adjudicated on the merits by a state court," a federal habeas petitioner must
show the state court's legal determination was deficient "on the record that was before that state
court." Id at 185.
Blakney has a right to due process in proceedings about whether he violated conditions of
his suspended imposition of sentence. A series of cases from the Supreme Court of the United
States, beginning with Morrissev v. Brewer. 408 U.S. 471 (1972), recognize a due process right
14
during such revocation proceedings. Most reeently, the Supreme Court of the United States has
characterized the right as follows;
There is no right under the Federal Constitution to be conditionally released before
the expiration of a valid sentenee, and the States are under no duty to offer parole
to their prisoners. When,however,a State creates a liberty interest,the Due Process
Clause requires fair procedures for its vindication—and federal eourts will review
the application ofthose constitutionally required procedures.
Swarthout v. Cooke. 562 U.S. 216,220(2011)(per curiam);^Blaek v. Romano,471 U.S. 606,
610 (1985)("The Due Process Clause of the Fourteenth Amendment imposes procedural and
substantive limits on the revocation of the eonditional liberty created by probation."). Although
the Supreme Court decisions typically have dealt with revoeations of probation or parole, the
revocation of a suspended imposition of sentenee, as occurs under South Dakota procedure, is
substantially similar and governed by the same principles. See, e.g.. State v. MeCormick. 385
N.W.2d 121, 123-24 (S.D. 1986)(applying prineiples of Morrissev to revocation of suspended
imposition of sentence in South Dakota).
In Morrissev. the Supreme Court deemed the "minimum requirements of due process" in
a revocation proceeding to include: (a) written notice of the claimed violation to the individual;
(b) disclosure to the individual of evidence against him;(c)the opportunity to be heard in person
and to present witnesses and documentary evidence;(d) the right to confront and cross-examine
adverse witnesses;(e)a neutral and detached hearing body or judge; and (f) a written statement by
the fact finder as to the evidence relied on and the reasons for the revocation. Morrissev. 408 U.S.
at 489;^ Gagnon v. Scarpelli. 411 U.S. 778, 786 (1973). In Gagnon. decided one year after
Morrissev. the Supreme Court recognized that a person facing revocation was entitled to two
hearings: 1) a preliminary hearing at the time of the arrest and detention to determine if probable
cause exists for the revocation; and 2) a "somewhat more comprehensive hearing prior to the
15
making ofthe final revocation decision." Gagnon. 411 U.S. at 781-82. "Revocation deprives an
individual, not ofthe absolute liberty to which every citizen is entitled, but only ofthe conditional
liberty properly dependent on observance of special parole restrictions." Id at 781 (quoting
Morrissev. 408 U.S. at 480). Therefore, the Supreme Court has made clear that a person facing
revocation is not due a "full panoply of rights." Morrissev. 408 U.S. at 480.
The same year that the Supreme Court decided Gagnpn, the Supreme Court found a
revocation invalid under the Due Process Clause when there was no evidentiary support for finding
a condition to be violated. Douglas v. Buder. 412 U.S. 430(1973)(per curiam). In Douglas, the
Supreme Court found that the failure to report a traffic citation being issued could not support a
revocation based on a condition requiring the defendant to report "all arrests;" the Supreme Court
then deemed the revocation invalid under the Fourteenth Amendment. Id at 431-42.
In Bearden v. Georgia, 461 U.S. 660(1983), and then again in Black v. Romano,471 U.S.
606 (1985), the Supreme Court made clear that neither Morrissev nor Gagnon required a state
court to explain why it had rejected alternatives to incarceration when making a determination of
a revocation.
Those cases also made clear that neither Morrissev nor Gagnon restrict the
substantive grounds on which a state court may grant revocation. The Supreme Court in Black
reasoned:
The decision to revoke probation is generally predictive and subjective in nature,
Gagnon, 411 U.S. at 787, and the fairness guaranteed by due process does not
require a reviewing court to second-guess the factfinder's discretionary decision as
to the appropriate sanction. Accordingly, our precedents have sought to preserve
the flexible, informal nature of the revocation hearing, which does not require the
full panoply of procedural safeguards associated with a criminal trial.
Black, 471 U.S. at 613 (citing Gagnon and Morrissev!.
In Black,the Supreme Court recognized and affirmed that the probationer remains "entitled
to written notice of the claimed violations of his probation." Id. at 612. A split in the federal
16
courts ofappeals exists over what the nature ofthe written notice must be. For instance,the United
States Court of Appeals for the Ninth Circuit has held that when a revocation petition alleges the
commission of a new crime, the defendant is entitled to receive notice ofthe specific statute he is
charged with violating. United States v. Havier. 155 F.3d 1090, 1093 (9th Cir. 1998); see also
United States v. Kirtlev, 5 F.3d 1110, 1112(7th Cir. 1993). However,the United States Court of
Appeals for the Eighth Circuit explicitly rejected Havier in U.S. v. Sistrunk. 612 F.3d 988(8th Cir.
2010). In Sistrunk. the Eighth Circuit ruled that "for notice to be effective, it need only assure that
the defendant understands the nature of the alleged violation." Id at 992. The Eighth Circuit in
Sistrunk also held that, absent a showing of specific prejudice by failure to cite a statute, a
probationer has no basis to assert a constitutional defect in the requisite notice. Id. at 992-93.
The Supreme Court of South Dakota, relying on Morrissev and Gagnon. has reversed a
revocation of a suspended imposition of sentence when the revocation was granted on grounds
other than those listed in the written notice of violation. McCormick, 385 N.W.2d at 123-24.
Thus, it is puzzling why, when Blakney invoked McCormick both before Judge Riepel and in
appellate briefing, the Supreme Court of South Dakota did not consider whether the late
amendment of the revocation petition coming after testimony of what occurred on October 31,
2014, was procedurally permissible under McCormick.
Because the Supreme Court of South Dakota affirmed summarily without explaining its
reasoning, this Court must "look through" the summary affirmance to apply its review under §
2254 to the "last reasoned decision" ofthe state courts. Ylst v.Nunnemaker.501 U.S. 797,803-04
(1991). As the Eighth Circuit put it in Worthington v. Roper.631 F.3d 487(8th Cir. 2011),"when
a state appellate court affirms a lower court decision without reasoning, we Took through' the
silent opinion and apply AEDPA review to the 'last reasoned decision' ofthe state courts." Id at
17
497. In doing so,this Court must accord a presumption ofcorrectness to the factual determinations
of the state court and must set aside the fact findings only if they "do not enjoy support in the
record." Id. at 504,508 (citation omitted). The "last reasoned decision" here is the oral reasoning
of Judge Riepel which includes relying on an expired condition as one ground for revocation and
provides scant,ifany analysis, ofthe due process concerns Blakney's counsel was seeking to raise.
B. Blakney's claims
1. Ground two - State court jurisdiction.
With these principles in mind, this Court tums to Blakney's challenges to the revocation
of the suspended imposition of sentence. Blakney's first challenge, made in ground two of his
§ 2254 petition, is that the state court lacked jurisdiction to revoke the suspended sentence after
his two-year probationary period ended. Blakney has good reason to challenge revocation of the
suspended sentence based on condition number one of his sentence in State CR 11-4924, which
required compliance with the conditions of adult probation for a two-year period, because that
two-year period had elapsed. The underlying condition number one of the conditions of adult
probation requiring generally that for a 24-month period he "obey all federal, tribal, state laws and
municipal ordinances" under the sentence originally imposed by Judge Houwman in 2011 had
expired by the time ofthe events of October 31, 2014. The State in its briefto the Supreme Court
of South Dakota acknowledged as much in stating "[a]ll parties agreed defendant was on
unsupervised probation at the time the State filed the Motion to Revoke Suspended Sentence."
Doc. 8-24 at 23. If the state judge had based the revocation strictly on violation of condition one
or on some violation of the two-year probationary period in State CR 11-4923, then this Court
might be dealing with the situation akin to Douglas, where the record would be "so totally devoid
18
of evidentiary support as to be invalid under the Due Process Clause of the Fourteenth
Amendment." 412 U.S. at 432.
However, as early as December 9, 2014, during the evidentiary hearing on the motion to
revoke. Judge Riepel raised and the State sought to add additional grounds to justify revocation
under conditions twelve and thirteen of Blakney's original sentence in State CR 11-4924. Doc. 818 at 37-38. Judge Riepel recessed the evidentiary hearing and later on the record made a ruling
that included an intention to revoke the suspended imposition ofsentence under conditions twelve
and thirteen. Doc. 8-18 at 50-51. Then on April 24,2015,the State formally amended its motion
in writing to list conditions twelve and thirteen as additional grounds for revocation. Neither the
original bench order nor the formal order revoking suspended sentence later signed by Judge
Riepel list the particular grounds on which she was revoking the suspended imposition ofsentence.
Doc. 8-20; Doc. 8-21. However, during the hearing on June 12, 2015, Judge Riepel discussed
conditions twelve and thirteen, albeit imprecisely and alongside condition one and an implied
condition of good behavior, as a basis for her revocation ofthe suspended imposition ofsentence.
Conditions twelve and thirteen of Blakney's original sentence extended conditions and
obligations not to commit any class-one misdemeanor or any crime of violence for a period often
years after he was sentenced. The events of October 31,2014,occurred within three years of when
Blakney was sentenced. The state court did not lack jurisdiction to consider revocation ofBlakney
for an alleged commission ofa class-one misdemeanor or crime of violence within ten years ofthe
sentence being imposed. Thus, Blakney's argument that the state court lacked jurisdiction is
mistaken; the issues here center on due process, not a lack of state jurisdiction.
2.
Grounds three and four- Lack of proper notice.
19
Blakney's second general argument for habeas relief, set forth in grounds three and four of
his § 2254 petition, asserts a due process violation because Blakney received written notice only
of violation of condition one and did not receive a preliminary hearing on the alleged violation of
conditions twelve and thirteen. Blakney contends that there was a due process violation by Judge
Riepel allowing and the State proceeding to change the grounds on which revocation was occurring
in the midst of the evidentiary hearing on the motion to revoke on December 9, 2014, and not
providing written notice to Blakney until some five months later on April 24, 2015. See Doc. 818 at 37-38, 51; Doc. 8-19.
The wellspring of the constitutional right to due process in a revocation proceeding is
Morrissev. where the Supreme Court of the United States required, among other things, as
"minimum requirements of due process," that a person like Blakney receive "written notice ofthe
claimed violations." Morrissev, 408 U.S. at 489. Building on Morrissev, the Supreme Court in
Gagnon required two hearings; 1) a preliminary hearing at the time of arrest and detention to
determine if probable cause exists; and 2)"a somewhat more comprehensive hearing prior to the
making ofthe final revocation decision." Gagnon. 411 U.S. at 781-82. Blakney had received an
affidavit and order determining probable cause existed for revocation. Doc. 8-14, and an advising
hearing concerning the revocation. Doc. 8-17, but both ofthose occurred during a time when only
condition one was alleged to be violated. The hearing on December 9, 2014, was the "somewhat
more comprehensive hearing prior to the making of the final revocation decision," see Gagnon.
411 U.S. at 781-82,where Blakney was present, had an opportunity to confront and cross-examine
adverse witnesses, and had an opportunity to present additional evidence. Only after presentation
of testimony did Judge Riepel suggest and the State express interest in amending the grounds for
revocation to include violation of paragraphs twelve and thirteen. However, there was no
20
preliminary hearing on conditions twelve and thirteen or on any alleged violation of the implied
condition of good behavior under South Dakota law.
The Supreme Court of South Dakota, despite Blakney's appeal ofthe revocation, issued a
summary affirmance, so this Court must look through to Judge RiepeTs decision made orally on
the record as the "last reasoned decision" of the state courts. See Ylst 501 U.S. at 803-04;
Worthington. 631 F.3d at 497. Judge Riepel did not provide much reasoning, despite Blakney's
coimsel invoking McCormick. 385 N.W.2d 121, which had relied on Gagnon and Morrissev to
conclude that a suspended imposition ofsentence could not be revoked on grounds other than what
was listed in the written notice of violation. To be clear, Blakney's counsel did not mention
McCormick during the December 9, 2014 hearing, but no issue under McCormick or Morrisev
would exist imtil late during the December 9,2014 hearing, when Judge Riepel suggested possible
amendment ofthe grounds for revocation ofthe suspended sentence. As far as this Court can tell,
Blakney's counsel mentioned McCormick for the first time during the April 24, 2015 hearing.
Although Judge Riepel discussed McCormick and its implications during the April 24 and June 5
hearings, she never made an explicit ruling explaining why McCormick did not apply and why
there were no due process concerns. Thus, there is no true "last reasoned decision" to which this
Court can defer here. Ifthis Court were to apply Eighth Circuit precedent to Blakney's claim,the
notice would only have to assure that Blakney understands the nature ofthe alleged violation and
Blakney would have to show specific prejudice by the lack of clarity in the written violation.
Sistrunk. 612 F.3d at 992-93.
Blakney has a current state court habeas corpus petition pending, where he is represented
by counsel. State CIV 17-2981. A fundamental tenet offederalism in the context of§ 2254 cases
is that a federal court"should defer action on causes properly within itsjurisdiction until the courts
21
of another sovereignty with concurrent powers, and already cognizant of the litigation, have had
an opportunity to pass upon the matter." Rose,455 U.S. at 518 (citation omitted). That is because
"it would be unseemly in our dual system of government for a federal district court to upset a state
court conviction without an opportunity to the state courts to correct a constitutional violation."
Rhines v. Weber. 544 U.S. 269,274(2005)(quoting Rose,455 U.S. at 518). The failure of Judge
Riepel to more expressly rule—and perhaps even the failure ofthe Supreme Court ofSouth Dakota
to rule other than summarily—on whether due process protections were violated could be due to
the claimed ineffective assistance of counsel alleged in Blakney's current state habeas case. See
State CIV 17-2981. This case presents a unique circumstance where neither the Supreme Court of
South Dakota nor the state trial court truly ruled on a claim,that though raised and exhausted, may
have been overlooked due to ineffective assistance ofcounsel or otherwise. Blakney might amend
his current state habeas case or make arguments that could result in some state court ruling that
possible violation ofdue process rights or state procedural rights under McCprmick justify relief.^
Thus, this Court thinks it best to deny without prejudice to refiling the Defendant's motion to
dismiss pending resolution of Blakney's state habeas corpus proceeding. In that manner,the state
court may be given full and final opportunity to consider whether ineffective assistance ofcounsel
combined with procedural abnormalities contravened Morrissev and Gagnon or the state
application ofthose cases in McCormick.
3. Remaining exhausted grounds - sufficiency of evidence.
Blakney's final group of challenges, set forth in grounds six, seven, eight, and nine of his
§ 2254 petition, assert that there is insufficient evidence to support the grounds for revocation. For
' be clear, this Court is not directing how any state court should rule, but discussing a possibility
To
here.
22
reasons discussed above,Blakney appears to be right with respect to revocation based on condition
one, which extended for just a two-year period following Blakney's original sentence. However,
that leaves the remaining grounds ofrevocation including conditions twelve,thirteen, and possibly
even an implied condition of good behavior under South Dakota law.® Blakney's challenges to
sufficiency of the evidence likewise appear to be better directed initially to the state court in the
state habeas corpus proceeding at this time. Blakney's arguments of impropriety to revoke on a
class-one misdemeanor when he was not convicted of a class-one misdemeanor for what occurred
on October 31,2014, and his related argument that he committed no "crime of violence" implicate
interpretation of South Dakota statutes and law, and a revocation based in part on breach of an
implied provision ofthe sentence appears to be a unique creature of South Dakota law. To justify
reliefin federal court under § 2254, Blakney would have to meet the standard ofDouglas v. Buder
of showing that the record was "so totally devoid of evidentiary support [that the basis for
revocation is] invalid under the Due Process Clause ofthe Fourteenth Amendment"for this Court
to grant relief under these circumstances. Douglas. 412 U.S. at 432. The deferential review by
federal courts imder § 2254 merits withholding final determination at this time imtil the state courts
conclude review in State CIV 17-2981.
IV.
Conclusion and Order
For the reasons explained above, it is hereby
ORDERED that Defendants' Motion to Dismiss, Doc. 13, is granted in part with regard to
ground two of the Petition, but is denied without prejudice to refiling after the conclusion of State
CIV 17-2981.
® The amended motion to revoke, however, did not assert violation of any such implied condition.
State CR 11-4924; Doc. 8-19.
23
DATED this oTf''' day of March,2019.
BY THE COURT;
ROBERTO A. LANGE'
UNITED STATES DISTRICT JUDGE
24
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?