Blakney v. Young et al
Filing
23
OPINION AND ORDER DISMISSING CASE denying 19 Motion to Grant relief and immediate release; denying 22 Motion to Show Prejudice and Immediate Release until resolved. Signed by Chief Judge Roberto A. Lange on February 4, 2020. (Sent to Christopher William Blakney via US Postal Service) (DLC)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
CHRISTOPHER WILLIAM BLAKNEY,
4:17-CV-04022-RAL
Plaintiff,
OPINION AND ORDER
vs.
DISMISSING CASE
,
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 eorpus under
28 U.S.C. § 2254(b) against Darin Young, in his eapacity as Warden of the South Dakota State
Penitentiary, and Marty J. Jackley^, in his eapaeity 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. Doe. 11. This
Court then considered the Defendants' motion to dismiss on the merits, obtained state court records
on Blakney's various state criminal and civil filings, and issued an Opinion and Order Granting in
Part Motion to Dismiss. Doe. 18. In that Opinion and Order, this Court discussed at length the
' Under Federal Rule of Civil Procedure 25(d), the newly elected Attorney General of South
Dakota, Jason Ravnsborg, is automatically substituted as the party defendant for former Attorney
General Marty Jaekley.
1
procedural history of Blakney's revocation of suspended sentence. Because Blakney had a
pending state habeas corpus case that might address issues in this case and because of the
deferential nature offederal court review ofstate court decisions in § 2254 cases, this Court denied
without prejudice to renewal part ofthe Defendants' motion to dismiss. Doc. 18. Blakney's state
habeas corpus action now is concluded and not timely appealed, and both parties through recent
filings. Docs. 19, 21, 22, are seeking a final decision from this Court. Much of this Opinion and^
Order duplicates this Court's prior decision as a means of explaining the complicated history of
Blakney's case and why this Court must deny § 2254 relief under the circumstances.
I.
Judicial notice of state court files
The parties did not make it easy for this Court to learn the procedural background and
history of Blakney's cases. Blakney is proceeding pro se, and the Defendants were very selective
about what they filed from the state court record. 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 Blaicney made claims of a violation of Bradv v.
Marvland and of an illegal or ambiguous sentence. Doc. 8-27. This Court was interested in the
status ofBlakney's state court habeas case because ofthe deferential nature offederal court review
of a state court conviction under 28 U.S.C. § 2254, and because of the preference to have state
courts correct constitutional defects in state convictions first to avoid the "unseemly" disruption
of state judicial proceedings through premature federal court intervention. Rose v. L\mdv. 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 infonnation on Minnehaha County civil ease 16-859, a law clerk for
this Court learned of other civil cases filed in state court hy 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 Mirmehaha Coimty criminal cases, 11-4923
and 11-4924, as well as all pleadings filed in Mirmehaha 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 Mirmehaha Cormty Clerk of
Court, consisting of pleadings and documents filed by Blakney, the Defendants, the state court
(transcripts and orders), and the Mirmehaha County State's Attomey.
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
Mirmehaha County Clerk of Court's official records ofBlakney's criminal and civil cases are "not
subject to reasonable dispute" and fi^om a source "whose accuracy cannot reasonably be
questioned." Fed. R. Evid. 201(b). Under Rule 201(e), 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 of taking judicial notice. Id 201(e). Accordingly,
this Court, on February 22, 2019, issued an Order, Doc. 16, giving the parties fourteen calendar
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 fi-om the text of this
Opinion and Order. This Court will use "Doe. "to reference whether and where in the public
CM/ECF system ofthis Court the document cited may be found.
3
days within which to object to this Court taking judicial notice ofMinnehaha County criminal files
11-4923 and 11-4924, and of Minnehaha County eivil files 16-859, 17-2981, 18-1596, and 18-
2633. Neither Blakney nor the Defendants objected, so this Court took judieial notiee of those
state case files in order to fully consider the procedural and substantive baekground of Blakney's
convictions, sentences, revocations, incarceration, and ehallenges thereto as part of ruling on
Blakney's exhausted § 2254 elaims. Doe. 18 at 3.
II.
Blakney's state court history
A. Initial criminal cases and sentences
Blakney's state-eourt odyssey relating to claims in this § 2254 case began with his
indietment in two separate Minnehaha County criminal cases on September 1, 2011. State CR 114923; State CR 11-4924. In one ease, Blakney was eharged with seeond degree rape allegedly
perpetrated on July 16,2011, ofthen sixteen-year-old J.K.G. State CR 11-4923. In the other ease,
Blakney was charged with one eount of second-degree rape, one eount of aggravated assault, and
three counts of simple assault for allegedly raping his girlfiiend 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 offender based on Blakney's four prior felony convictions, including three grand theft
convictions in 1996 and 1997, and a possession ofeontrolled substance felony eonviction in 2010.
State CR 11-4923; State CR 11-4924; Doc. 8-2,
Blakney, with the assistance ofcounsel, reaehed a plea agreement to resolve the eharges in
both of his state eriminal cases. Under the plea agreement, Blakney entered an Alford plea.^
^ An Alford plea is named after the ease 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.
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 ofsimple 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. 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:
1. That the defendant sign and abide by the standard supervised probation
agreement with the Court Services Department for twenty-four(24)months.
Doe. 8-3. In turn, paragraph one of the 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 Minnehaha 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 CR11-4924; 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
directed him to follow a recommendation 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 Patricia
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 ofSouth 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, 20r4. 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
sentence 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 m State CR
11-4924 apparently had run by July 30, 2014. 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 ofsuspended sentence); see also Doc.
8-24 at 23 (State appellate brief acknowledging Blakney on "unsupervised probation" after twoyear 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 Blakney raises issues of due process and sufficiency of the evidence to support revocation of
his suspended sentence.
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 "[y]ou 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
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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." Doe. 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.
SDCL § 23A-27-19.1 (not listing time spent serving sentence later
vacated as tolling probationary period).
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. Doe, 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 turn 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 fi-om the three witnesses at the revocation hearing. See Doe. 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 fi-om her bedroom into the bathroom, and Blakney
'* 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
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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 Sheriff's
Deputy E.J. Colshan arrested Blakney on a simple assault charge after Blakney had left for work
that day. Deputy Colshan leamed that Blakney was driving with a license that was revoked^ and
cited him on that offense ^ 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 been violated by Blakney acting
recklessly to commit simple assault and driving with a revoked license, both of which would be
had called the counselor to cancel the meeting, then leamed by reviewing Kilmer's phone log that
she had not in fact called the counselor, and thereafter confronted Kihner about Ijdng to him.
^ There was a house mle about only smoking in the bathroom, and Blakney's counsel suggested
that D.K. came into the bathroom to smoke a cigarette.
^ 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.
state or municipal law violations. Doc. 8-18 at 33-34. Blakncy's counsel countered that the twoyear period applicable to condition one had expired and that no violation could be found. Doe. 818 at 35-36. Judge Riepel then raised the possibility of the State amending the grounds of the
motion to revoke to include grounds other than violation of condition one, the State sought to do
so, and Blakncy's counsel objected. Doe. 8-18 at 37-38. Judge Riepel offered Blakney an
opportunity to call other witnesses. Doc. 8-18 at 40-41. Blakncy'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 grounds suggested for revocation). Doe. 8-18 at 45-49. Judge Riepel explained why
she thought there was a basis for Blakncy'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
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 December 9,2014,
with an apparent decision from Judge Riepel to revoke the suspended imposition ofsentence based
on violations of paragraphs one, twelve, and thirteen of the prior judgment and an imphed
condition of good behavior, the formal amended motion to revoke suspended sentence was not
filed until April 24, 2015. State CR 11-4924; Doc. 8-19. The imderlying criminal file. State CR
^ Judge Riepel was drawing this implied condition from state decisions such as In re Adams. 360
N.W.2d 513 (S.D. 1985), and State v. Holter. 340 N.W.2d 691 (S.D. 1983).
10
11-4924,reflects that after the December of2014 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
of the suspended sentence occurred on June 12, 2015. Blakney did not seek to present any
witnesses or new evidence at any of those hearings.
At the Jvme 12 sentencing hearing, Blakney's attorney and Judge Riepel had a discussion
about the basis on which Judge Riepel was revoking the suspended imposition of sentence.
Blakney's counsel and Judge Riepel differed on whether the speeifie violations were addressed at
the evidentiary hearing, and whether Blakney was aware that the State was proceeding to allege
violations ofconditions twelve and thirteen ofthe suspended imposition ofsentence at the time of
the evidentiary hearing. Judge Riepel summarized her prior ruling and her reasoning as follows:
So,it's a strict violation ofprobation 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 fact that he is on probation and he's required to
obey all laws and I tbink that's the way it is.
The fact that he now - the State had filed an amendment and you're asking
me to reeuse 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 ease.
State CR 11-4924, Jime 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.
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
11
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.
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 process rights in several respects.
Doe. 8-23; Doe. 8-25. The State in its brief acknowledged that "[a]ll parties agreed defendant was
on unsupervised probation at the time the State filed the Motion to Revoke Suspended Sentence."
Doe. 8-24 at 23. That is, the State effectively acknowledged that Blakney's formal two-year period
of probation had run under the conditions of adult probation and condition one of the sentence in
State CR 11-4924. The State argued that nevertheless, under conditions twelve and thirteen, there
were groxmds to revoke the suspended sentence. Doc. 8-24. The Supreme Court of South Dakota
affirmed summarily without opinion on November 14, 2016. Doe. 8-26.
D. Blakney's State post-sentence civil cases
Blakney has filed a number of civil eases in state court challenging and concerning his
convictions and sentences. In State CIV 16-859, Blakney filed a state court habeas corpus petition
contending that his conviction on State CR 11-4923 was based on a Bradv violation. In eormection
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 egris [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 Coxort 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
12
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 ofcoram 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
internally contradictory in violation of his Fifth and Fourteenth Amendment rights to due process.
1
That state habeas case proceeded slowly, with delays in the appointment and then recusal of
counsel for Blakney. When this Court entered the Opinion and Order Granting in Part Motion to
Dismiss on March 27, 2019, Doc. 18, the state court case CIV 17-2981 remained at the state trial
court level. In denying without prejudice part of the Defendants' motion to dismiss, this Court
reasoned:
Blakney has a current state court habeas corpus petition pending, where he is
represented by counsel. State CIV 17-2981. A fimdamental tenet offederalism in
the context of § 2254 cases is that a federal court "should defer action on causes
properly within its jurisdiction until the courts of another sovereignty with
13
j
i
concvirrent powers, and already eognizant ofthe 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 of the Supreme Court of South Dakota to rule other than
summarily—on whether due process protections were violated could be due to the
claimed meffective 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 of counsel or otherwise. ... 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 [certain
federal and state precedent on Due Process rights on revocation proceedings].
Doc. 18 at 21-22.
This Court recently learned that on October 11, 2019, a state circuit court judge in State
CIV 17-2981 signed a Decision Concerning Motion to Dismiss, Doc. 21-1, and an Order
Dismissing Habeas Corpus Action with Prejudice, Doc. 21-2. The state court judge deemed the
doctrines of res judicata and collateral estoppel to bar relief and did not address the merits of any
claim raised by Blakney. Blakney's counsel thereafter withdrew a certificate of probable cause,
and no appeal from that dismissal occurred. Doc. 21-3.
Both Blakney and Defendants have filed pleadings by which they now seek a final decision
from this Court. Docs. 19, 21,22. Blakney has filed motions for immediate release, Docs. 19, 22;
Defendants filed a response to Blakney's motion upon being ordered by this Court to do so. Docs.
20,21, which this Court interprets as renewal ofthe Defendants' motion to dismiss all ofBlakney's
remaining claims.
III.
Discussion
14
I
I
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 ofthe 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 coxirt 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
ofthe United States; or
(2) resulted in a decision that was based on an unreasonable determination
ofthe facts in light ofthe 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
presumptively correct factual finding lacks evidentiary support." Trussell 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)(citing Williams v. Tavlor. 529 U.S. 362,404—
05 (2000)). A state court's legal determination is contrary to federal law if it reaches the opposite
15
conclusion of the Supreme Court on a question of law, or if, when eonfronting materially
indistinguishable facts as a case decided hy the Supreme Court, it reaches a different conclusion.
Williams. 529 U.S. at 405. If a state court correctly identifies the eontrolling legal principle, but
applies it to the faets of a case in an unreasonable manner, then the decision runs afoul of the
"unreasonable application" clause of§ 2254(d)(1). IcL 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 foeuses 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 proeess in proceedings about whether he violated conditions of
his suspended imposition of sentenee. 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
during such revocation proceedings. Most recently, the Supreme Court of the United States has
characterized the right as follows:
There is no right under the Federal Constitution to be eonditionally released before
the expiration of a valid sentence, and the States are under no duty to offer parole
to their prisoners. When,however,a State creates a liberty interest,the Due Proeess
Clause requires fair procedures for its vindication—and federal courts will review
the application ofthose constitutionally required proeedures.
16
Swarthout v. Cooke, 562 U.S. 216, 220(2011)(per curiam); see Black 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 conditional liberty created by probation."). Although
the Supreme Court decisions typically have dealt with revocations of probation or parole, the
revocation of a suspended imposition of sentence, as occurs under South Dakota procedure, is
substantially similar and govemed by the same principles. See, e.g.. State v. McCormiek, 385
N.W.2d 121, 123-24 (S.D. 1986)(applying principles of Morrissev to revocation of suspended
imposition ofsentence 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. Scamelli. 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
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." Ifr 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 ofrights." Morrissev. 408 U.S. at 480.
17
The same year that the Supreme Court decided Gaguon, 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(19731 (per euriam). 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 431-32.
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 altematives 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 faimess guaranteed by due process does not
require a reviewing court to second-guess the faetfinder'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 Morrissevl.
In Black,the Supreme Court recognized and affirmed that the probationer remains "entitled
to written notice ofthe claimed violations of his probation." Id at 612. Federal courts of appeals
have differed over what the nature ofthe written notice must be to afford due process. For instance,
the Uriited 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 of the 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
18
Court of Appeals for the Eighth Circuit adopted a less stringent standard in United States v.
Sistriinic 612 F.3d 988 (8th Cir. 2010). In Sistrunk. the Eighth Circuit ruled that "[f]or notice to
be effective, it need only assure that the defendant understands the nature ofthe 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 affums 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
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 fmdings 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
19
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 turns to Blakney's fully exhausted challenges to
f
the revocation of the suspended imposition of sentence. Blakney's first such challenge, made in
ground two ofhis § 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
S
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.
The underlying condition number one ofthe conditions of adult probation requiring generally that
for a 24-month period he "obey all federal, state, and tribal 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 brief to 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 pr on some violation of the two-year
probationary period in State CR 11-4923,then this Court would be dealing with the situation akin
to Douglas, where the record would be "so totally devoid of evidentiary support as to be invalid
under the Due Process Clause ofthe Fourteenth Amendment." 412 U.S. at 432.
However, as early as December 9, 2014, during the evidentiary hearing (albeit after
testimony) 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
20
in State CR 11-4924. Doc. 8-18 at37-38. Judge Riepel recessed the evidentiary hearing and later
on the record made a ruling that included an intention to revoke the suspended imposition of
sentence 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 hench order nor the formal order revoking suspended
sentence later signed hy Judge Riepel list the particular grounds on which she was revoking the
suspended imposition of sentence. Doc. 8-20; Doe. 8-21. However, during the hearing on June
12, 2015, Judge Riepel discussed conditions twelve and thirteen, alheit imprecisely and alongside
condition one and an implied condition of good behavior, as a basis for her revocation of the
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,oeeurred within three years of when
Blakney was sentenced. As this Court previously ruled. Doc. 18, the state court did not lack
jurisdiction to consider revocation of Blakney for an alleged commission of a class-one
misdemeanor or crime of violence within ten years of the 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
Blakney's second fully exhausted 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 ofconditions twelve and thirteen. Blakney contends that there was a due process
21
violation by Judge Riepel allowing and the State then ehanging 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 of alleged violations of conditions twelve and
thirteen until some five months later on April 24, 2015. See Doe. 8-18 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 of the 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 eoneeming the revocation. Doe. 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," Gagnon. 411
U.S. at 782, where Blakney was present, had an opportunity to eonfi-ont 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 a violation of conditions twelve and thirteen of Blakney's sentence in State
CR 11-4924. However,there was no preliminary hearing on conditions twelve and thirteen or on
any alleged violation ofthe implied condition of good behavior under South Dakota law.
The Supreme Court of South Dakota, despite Blakney's appeal of the revocation, issued a
summary affirmance, so this Court must look through to Judge Riepel's decision made orally on
22
the record as the "last reasoned decision" of the state courts.
Ylst 501 U.S. at 803-04;
Worthington. 631 F.3d at 497. Judge Riepel did not provide much reasoning, despite Blakney's
counsel invoking McCormick. 385 N.W.2d 121, where the Supreme Court of South Dakota 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 until late during the December 9, 2014 hearing, when
Judge Riepel suggested possible amendment of the groimds for revocation of the suspended
sentence after receiving the testimony. Blakney's counsel furst mentioned McCormick during the
April 24,2015 hearing. Although Judge Riepel mentioned McCormick and its implications during
the April 24 and June 5 hearings, she never made an explicit ruling about why McCormick did not
apply and why there were no due process concerns. Thus,there is no true "last reasoned decision"
on the alleged due process violation to which this Court can defer here.
With no true "last reasoned decision"from any state court to defer to, this Court is left with
determining whether under Morrissev and its progeny Blakney was deprived of his due process
rights when grounds other than what was listed in the initial written notice of violation ultimately
became a basis for imposition ofthe suspended sentence. The Eighth Circuit decision in Sistrunk
guides this Court's analysis. In Sistrunk. a petition to revoke federal supervised release described
the facts ofthe alleged violation but referenced generally the condition violated—that Sistrunk not
commit another federal, state, or local crime—^without identifying what specific new crime
Sistrunk allegedly committed. 612 F.3d at 990. After an evidentiary hearing, the district court
foimd that the government had met its burden of proving Sistrunk schemed to fi
:audulently obtain
fake identification cards. Id at 990-91. Sistrunk then moved to dismiss the petition because the
23
government had failed to identify any speeifie laws violated and thus violated Sistrunk's due
process rights. Id at 991. The district court recessed the hearing to allow the government to
determine what laws Sistrunk allegedly violated through obtaining phony identification cards. Id
One week later, the district court reconvened the hearing at which time the government identified
what federal and state law Sistrunk contravened, and the district court found both that Sistrunk had
violated at least a state statute and that Sistrunk's due process rights had not been violated. Id
The United States Court of Appeals for the Eighth Circuit in Sistrunk affirmed the district
court on appeal. The Eighth Circuit distinguished the Ninth-Circuit decision in Havier where the
petition to revoke alleged vaguely an offense with the element of imminent "life-threatening
danger to law enforcement persormel" and where Havier had a legitimate argument that the
absence of notice of what statute he violated caused him prejudice in how he would have handled
the evidentiary hearing. Havier. 155 F.3d at 1092-93;^Sistrunk. 612 F.3d at 991-92. The
Eighth Circuit in Sistrunk noted that Sistrunk, unlike in Havier. had "failed to show how the lack
of citation to a speeifie statute harmed his ability to defend against the alleged violations."
Sistrunk. 612 F.3d at 992. While acknowledging that citation to the alleged statutory violation is
"the better practice," the Eighth Circuit, noting that the petition provided extensive factual
allegations of Sistrunk's wrongful behavior, stated "[f]or notice to be effective, it need only assure
that the defendant understands the nature ofthe alleged violation."
Blakney's situation falls between the facts of Sistrunk and Havier. but ultimately is closer
to Si.stnmk. Blakney has made no argument, as the defendant in Havier did, that he or counsel
would have handled cross-examination or witnesses differently ifinformed prior to the evidentiary
hearing that conditions twelve and thirteen might become the basis for the revocation of his
suspended sentence. Blakney became aware of those additional grovmds toward the end of the
24
December 9, 2014 hearing, but did not present any additional evidence then, or at the hearing on
April 24,2015, after the petition was formally amended or at the hearings on June 5 and 12,2015.
Indeed, there is a parallel between what the district court in Sistrunk did in finding Sistrunk to have
acted fraudulently, then hearing Sistrunk's motion to dismiss for lack ofdue process in identifying
what laws were contravened,recessing the hearing, and reconvening later to allow the government
to identify what laws Sistrunk violated. Judge Riepel acted similarly in making a preliminary
factual finding, then hearing the due process argument and suggesting that Blakney violated other
conditions, recessing the hearing, and reconvening hearings in April of2015 and twice in June of
2015. While Blakney's revocation was at best messy, Blakney—certainly by the time of the
amendment of the petition on April 24, 2015—^had received effective notice to "assure that the
defendant understands the nature of the alleged violation." Si.strunk. 612 F.3d at 992. Blakney's
revocation may or may not have accorded with state law precedent under MeCormiek. but this
Court cannot conclude that Blakney's constitutional due process rights under Morrisev and its
progeny were violated, and Sistrunk leads this Court to deny § 2254 relief.
3. Remaining exhausted grounds - sufficiency of evidence
Blakney's final group offixlly exhausted challenges, set forth in grounds six, seven, eight,
and nine ofhis § 2254 petition, assert that there is insufficient evidence to support the grounds for
revocation. For reasons discussed above, Blakney is 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 of revocation including conditions twelve and
thirteen. Judge Riepel had referenced the implied condition of good behavior under South Dakota
law, but the amended motion to revoke did not assert violation of any such implied condition.
State CR 11-4924; Doe. 8-19. Thus, the question is the constitutional sufficiency ofthe evidence
25
to justify revocation for violating condition twelve ("no class one misdemeanors or greater for a
period often(10)years")or condition thirteen("no violent offenses for a period often(10)years").
State CR 11-4924; Doe. 8-3.
Unlike on Blakney's due process argument, Judge Riepel made some factual findings
impacting 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." Judge Riepel explained why she
believed Blakney's conduct in angrily horse kicking the door on October 31, 2014, thereby
unwittingly crushing D.K.'s fingers, constituted recklessly causing bodily injury under SDCL §
22-18-1(2). Doe. 8-18 at 49-51. In relevant part, SDCL § 22-18-1(2) as it existed in 2014^ read;
"Any person who:...(2)Recklessly causes bodily injury to another... is guilty ofsimple assault.
Simple assault is a Class 1 misdemeanor."
To justify reliefin federal court under § 2254, Blakney has 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." Douglas.
412 U.S. at 432. Because of the deferenti^ review by federal courts under § 2254, Blakney must
show by clear and convincing evidence that"the state court's presumptively correct factual finding
lacks evidentiary support." Trussell. 447 F.3d at 591. This Court cannot conclude that Judge
Riepel's application of SDCL § 22-18-1(2) was totally devoid of evidentiary support. Blakney
knew that D.K. was in the process of leaving the bathroom, turned his back to D.K., and angrily
kicked the door pinching D.K.'s fingers in the door, While the consequences for such a simple
^ The statute was amended in 2019, but is largely identical in providing: "A person is guilty of
simple assault, a Class 1 misdemeanor, if the person: ...(2) Recklessly causes bodily injury to
another."
26
assault are severe based on imposition of the entire suspended sentence, there remains sufficient
evidence under the standard ofreview in § 2254 cases to support Judge Riepel's decision. Because
there was a basis under condition twelve of the sentence for the revocation, this Court need not
consider whether there also was a basis for revocation for violating condition thirteen. See United
States V. Miller. 557 F.3d 910, 915 (8th Cir. 2009)("Because the District Court did not abuse its
discretion in revoking Miller's supervised release based on a violation of Special Condition 8, we
need not consider Miller's arguments with respect to Special Condition 9.").^
rv.
Conclusion and Order
For the reasons explained above, it is hereby
ORDERED that Blakney's motions for release. Docs. 19, 22, are denied and that
Defendants' renewed request to dismiss. Doc. 21,is granted.
DATED this 4*** day ofFebruary, 2020.
BY THE COURT:
ROBERTO A. LANGE
CHIEF JUDGE
^Contrary to Blakney's argument, he has no right to have a jury decide whether he violated
condition twelve. Minnesota v. Murphv.465 U.S. 420,435 n.7(1984)(explaining that there is no
right to a jury trial before probation is revoked).
27
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