Berry v. Fluke et al
Filing
18
OPINION AND ORDER granting 13 Motion for Summary Judgment. Signed by Chief Judge Roberto A. Lange on 1/7/2022. Mailed to Kevin Berry. (CLR)
Case 4:19-cv-04188-RAL Document 18 Filed 01/07/22 Page 1 of 16 PageID #: 377
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
KEVIN BERRY,
4:19-CV-04188-RAL
Plaintiff,
OPINION AND ORDER GRANTING
MOTION FOR SUMMARY JUDGMENT
vs.
BRENT FLUKE, ATTORNEY GENERAL
FOR THE STATE OF SOUTH DAKOTA,
Defendants.
Petitioner Kevin Berry filed a pro se petition for a writ of habeas corpus under 28 U.S.C.
§ 2254. Doc. I. This Court previously ruled that Berry had exhausted his claim that his Alford
plea to a sex crime lacked a sufficient factual basis, but that Berry had procedurally defaulted on
the other claims in his petition. Doc. 7. Respondents Brent Fluke and the Attorney General for
the State of South Dakota now move for summary judgment on Berry's remaining claim. Doc.
13. This Court grants the motion because the Supreme Court of South Dakota's resolution of
Berry's claim was not contrary to or an unreasonable application ofclearly established federal law.
I.
Facts^
Berry was arrested in the fall of 2016 for the alleged rape of his minor daughter, K.M.B.
A grand jury indicted him for first-degree rape; three counts of second-degree rape; three counts
'This Court previously took judicial notice of the state court records from Berry's criminal case
and two state habeas cases, and neither party objected to this Court doing so. Doc.7 at 1 n.1. This
Court draws the facts from the judicially noticed state court records. Respondents' statement of
undisputed material facts. Doc. 16, and Berry's response. Doc. 17.
1
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of aggravated incest; solicitation ofa minor; and three counts ofsimple assault. Berry entered into
a plea agreement and appeared before State Circuit Court Judge Susan Sabers for a change of plea
hearing. As part of the plea agreement, the prosecutor filed a complaint and an information
charging Berry with attempted sexual contact with a child under age sixteen and abuse or cruelty
to a minor. The plea agreement capped the sentence for attempted sexual contact at five years and
the sentence for abuse or cruelty to a minor at seven-and-a-half years. It gave the court discretion
to make the sentences concurrent or consecutive.
At the change of plea hearing, Judge Sabers advised Berry of his rights and detailed the
charges to which he was pleading guilty. Doc. 14-1 at 2-8. Berry eonfirmed that he understood
the rights he was waiving by pleading guilty and that he had discussed the effect of his plea with
his lawyer. Doe. 14-1 at 8. The State then provided a factual basis for the eharges, and defense
counsel explained that Berry wanted to enter an Alford plea^ to attempted sexual contact with a
child under age sixteen even though he disputed that anything sexual occurred with K.M.B. Doc.
14-1 at 10-11. Defense counsel eonfirmed that he had told Berry how an Alford plea operates and
said that while he didn't like his clients entering Alford pleas on sex offenses, the Alford plea was
Berry's idea and Berry was getting a "significant benefit" under the plea agreement. Doe. 14-1 at
11-12. Judge Sabers then reeounted Berry's charges under the indictment, explained that he faced
^Named after the Supreme Court's deeision in North Carolina v. Alford. 400 U.S. 25 (1970), an
Alford plea permits a defendant to plead guilty while maintaining his innoeence. Berry's amended
judgment and sentence state that he pleaded nolo contendere to attempted sexual eontact with a
child under age 16. At the change-of-plea hearing, however. Berry said that he was entering an
Alford plea and maintained that he did not do anything "sexual" with K.M.B. Alford and nolo
contendere pleas are similar, but some eourts distinguish them on the ground that an Alford plea
asserts innocence whereas a nolo eontendere plea refuses to admit guilt. United States v.
Mancinas-Flores. 588 F.3d 677,681 (9th Cir. 2009); United States v. Tunning.69 F.3d 107,11011 (6th Cir. 1995).
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"life plus" in prison if convicted of those charges, and asked whether he was entering an Alford
plea to avoid that possibility. Doc. 14-1 at 12-13. Berry replied:
I don't understand what you're asking me because I didn't do that
for that reason. I did that because I didn't do nothing sexual to my
kid. I smacked her several times,like grabbed her. That's why I did
it. I can't help the State wants to charge me with something that
they couldn't prove and don't prove just because she's saying. It
doesn't necessarily mean it's true. I know this is a hearsay
statement. I mean come on. I mean she had plenty of time to tell
people stuff. I mean I just have so many witnesses that, you know,
oh my God. I just can't believe I'm sitting here talking about sex
with my daughter.
Doc. 14-1 at 13. This prompted Judge Sabers to confirm that Berry knew the effect of entering an
Alford plea:
The Court: Well, you understand that your Alford plea will operate
as a plea of guilty to attempted sexual contact? So on paper, it will
read that you tried to have sexual contact with your daughter, the
exact thing you're sitting here denying here today. Do you
understand that?
Berry: Yes.
The Court: And that after today, you're [sic] plea of guilty sticks.
We call it an Alford plea because it is basically a benefit of the
bargain. You're getting out from under the more significant rape
charges, but it is still a plea of guilty and I don't want you to be
confused about that.
Berry: Okay.
The Court: You will be registering as a sex offender. You will be
housed at the penitentiary with sex offenders. You will be treated
as a sex offender on paper. It will show that you tried to have sexual
contact with your daughter. Do you understand that?
Berry: Yeah.
The Court: So calling it an Alford here today does not alter any of
that. Do you understand that?
Berry: Yeah.
The Court: Okay. Given that, you're asking me to accept your plea
to attempted sexual contact as an Alford plea and your plea to the
child abuse given your admission to quote, whacking her, closed
quote?
Berry: Yes, your honor.
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Doc. 14-1 at 13-15. Judge Sabers then accepted Berry's pleas "based on the record before" her
and her "conversations both in email and otherwise" with counsel. Doc. 14-1 at 15.
Judge Sabers ordered a psychosexual evaluation for Berry and ultimately sentenced him to
twelve-and-a-half years in prison. Berry appealed his conviction and sentence to the Supreme
Court of South Dakota; his sole argument was that there was an insufficient factual basis for his
Alford plea to attempted sexual contact with a child under age sixteen. The Supreme Court of
South Dakota summarily affirmed Berry's conviction in September 2018, finding his appeal
"without merit."
II.
Summary Judgment Standard
Courts employ summary judgment in habeas cases, Brandt v. Gooding.636 F.3d 124,132
(4th Cir. 2011); Clark v. Johnson. 202 F.3d 760, 764-65 (5th Cir. 2000), and the Federal Rules of
Civil Procedure apply to habeas proceedings "to the extent that they are not inconsistent with" the
applicable rules and statutes. Habeas Rule 12. Under Rule 56(a) of the Federal Rules of Civil
Procedure, summary judgment is proper "if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(a). Rule 56(a) places the burden initially on the moving party to establish the absence of a
genuine issue of material fact and entitlement to judgment as a matter of law. Fed. R. Civ. P.
56ta'): see also Celotex Com, v. Catrett. 477 U.S. 317, 322-23(1986). Once the moving party has
met that burden, the nonmoving party must establish that a material fact is genuinely disputed
either by "citing to particular parts of materials in the record" or by "showing that the materials
cited do not establish the absence . . . of a genuine dispute." Fed. R. Civ. P. 56(c)(1)(A),(B);
Gacek v. Owens & Minor Distrib.. Inc.. 666 F.3d 1142, 1145-46(8th Cir. 20121: see also Moslev
V. Citv ofNorthwoods.415 F.3d 908,910(8th Cir. 2005)(stating that a nonmovant may not merely
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rely on allegations or denials). A party opposing a properly supported motion for summary
judgment"may not merely point to unsupported self-serving allegations, but must substantiate his
allegations with sufficient probative evidence that would permit a finding in his favor, without
resort to speculation, conjecture, or fantasy." Reed v. Citv of St. Charles. 561 F.3d 788, 790-91
(8th Cir. 2009)(cleaned up and citations omitted). In ruling on a motion for summary judgment,
the facts and inferences fairly drawn from those facts are "viewed in the light most favorable to
the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587-88(1986)(quoting United States v. Diebold. Inc.. 369 U.S. 654,655(1962)(per curiam)).
III.
Analysis
Section 2254 of Title 28 allows a state inmate to collaterally attack his conviction and
sentence as contrary to the United States Constitution. 28 U.S.C. § 2254. Under § 2254, federal
courts may not grant relief on "any claim that was adjudicated on the merits" in state court unless
the state court's resolution was "contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court ofthe United States," or "was based
on an unreasonable determination of the facts in light of the evidence presented in the State court
proceeding." § 2254(d).
Section 2254(d)'s text creates three steps for federal courts analyzing a substantive habeas
claim. First, courts must determine whether the state court adjudicated the merits of the
petitioner's claim. This step is important because § 2254(d)'s demanding standard ofreview only
applies if the claim was adjudicated on the merits. When the state court did not resolve the claim
on the merits, federal courts review the petitioner's claim de novo. Worthington v. Roper. 631
F.3d 487, 495 (8th Cir. 2011). Second, if the state court did adjudicate the claim on the merits,
federal courts should determine whether there is "clearly established Federal law" governing the
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petitioner's claim. Marshall v. Rodgers. 569 U.S. 58, 61 (2013)(per curiam)(cleaned up and
citation omitted). This second step can be dispositive because a state court decision cannot be
contrary to or an unreasonable application of clearly established federal law when there is no
clearly established law to begin with. See Carey v. Musladin. 549 U.S. 70, 76-77(2006)(holding
that a state court decision was not contrary to or an unreasonable application of clearly established
federal law where the issue raised by the petitioner was an "open question" under Supreme Court
jurisprudence). Third, if the law governing the petitioner's claim is clearly established, federal
courts must decide whether the state court's decision was "contrary to" or an "unreasonable
application" of that law. This Court addresses these steps in turn.
A. The Supreme Court of South Dakota Adjudicated the Merits of Berry's
Claim
The Supreme Court of South Dakota's order affirming Berry's conviction constitutes an
adjudication on the merits of his claim that there was an insufficient factual basis for his Alford
plea to attempted sexual contact with a child under age sixteen. The court considered the briefs
and the record and concluded that Berry's appeal was "without merit" because "the issues" were
"clearly controlled by settled South Dakota law or federal law binding upon the states." Doc. 144. A state court need not explain its reasons for its decision to qualify as an adjudication on the
merits, Harrington v. Richter, 562 U.S. 86, 100 (2011), and § 2254(d)"applies even where there
has been a summary denial" ofa petitioner's claim. Cullen v. Pinholster, 563 U.S. 170,187(2011).
"When a federal claim has been presented to a state court and the state court has denied relief, it
may be presumed that the state court adjudicated the claim on the merits in the absence of any
indication or state-law procedural principles to the contrary." Harrington. 562 U.S. at 99.
Nothing in the parties' briefs or the Supreme Court of South Dakota's order suggests that
the court decided Berry's appeal on procedural or other technical grounds. See Brown v. Luebbers.
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371 F.3d 458, 461 (8th Cir. 2004)(en banc)(explaining that to qualify as an adjudication on the
merits, the "state court's decision must be ajudgment—an adjudication—on a substantive issue—
the merits (as compared with a procedural or technical point)"). Nor is there any indication that
the Supreme Court of South Dakota rejected Berry's appeal based on a state change-of-plea
standard that is less demanding than what the United States Constitution requires. Because the
Supreme Court of South Dakota adjudicated Berry's claim on the merits, he must show the court's
decision was "contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court ofthe United States." § 2254(d).
B. It Is Unlikely that the Legal Principle Upon Which Berry Relies is Clearly
Established
Courts deciding whether a legal principle is "clearly established" must focus on "the
holdings, as opposed to the dicta" ofthe Supreme Court's decisions. Williams v. Tavlor. 529 U.S.
362, 412(2000); see also Thaler v. Havnes. 559 U.S. 43, 47(2010)("A legal principle is 'clearly
established' within the meaning of this provision only when it is embodied in a holding of this
Court."). Precedent from a federal court of appeals "does not constitute clearly established Federal
law" and thus "caimot form the basis for habeas relief under § 2254(d)(1). Parker v. Matthews.
567 U.S. 37, 48-49(2012)(per curiam). Nor may circuit precedent "be used to refine or sharpen
a general principle of Supreme Court jurisprudence into a specific legal rule" that the Supreme
Court has not announced. Marshall. 569 U.S. at 64. Nevertheless, this Court may consider Eighth
Circuit cases to see "whether it has already held that a particular point in issue is clearly established
by Supreme Court precedent." Marshall. 569 U.S. at 64. And conflicting authority from lower
courts may be evidence that a rule is not clearly established. Carev. 549 U.S. at 76 (concluding
that wide divergence by lower courts on an issue "reflect[ed] the lack of guidance" from the
Supreme Court).
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Berry's claim that a strong factual basis needed to accompany his plea rests on the Supreme
Court's decision in Alford. The defendant in Alford faced a first-degree murder charge carrying
the possibility of a death sentence. Alford. 400 U.S. at 26. He insisted that he was innocent but
told the trial court that he was pleading guilty to second-degree murder to avoid the death penalty.
Id. at 28. A federal habeas court ruled that the plea was involuntary because the defendant would
not have pled guilty but for his fear of a death sentence. Id at 30. The Supreme Court disagreed,
holding that the "standard was and remains whether the plea represents a voluntary and intelligent
choice among the alternative courses of action open to the defendant." Id at 31. Although the
Court recognized that an express admission of guilt accompanies most pleas, it concluded that the
Constitution did not require such an admission for a plea to be knowing, voluntary, and intelligent.
Id at 37. The Court held that the defendant's plea was constitutional given "the strong factual
basis for the plea demonstrated by the State and [the defendant's] clearly expressed desire to enter
it." Id at 38. It also included a footnote lauding some lower courts' approach to guilty pleas
accompanied by claims of innocence:
Because ofthe importance ofprotecting the innocent and ofinsuring
that guilty pleas are a product of free and intelligent choice, various
state and federal court decisions properly caution that pleas coupled
with claims of innocence should not be accepted unless there is a
factual basis for the plea, and until the judge taking the plea has
inquired into and sought to resolve the conflict between the wavier
of trial and the claim of innocence.
Id n.IO (cleaned up and internal citations omitted).
It is debatable whether the Alford decision clearly established a constitutional requirement
of a strong factual basis for guilty pleas accompanied by claims of innocence. There are Eighth
Circuit cases saying that Alford requires a strong factual basis before courts may accept a guilty
plea from a defendant who maintains his innocence.
8
Brownlow v. Groose. 66 F.3d 997, 998
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n.2(8th Cir. 1995)("An Alford plea allows a defendant to plead guilty and consent to imposition
of a sentence even though he may continue to proclaim his innocence. In such circumstances, the
court accepting the plea must determine that there is 'strong evidence of actual guilt.'" (quoting
Alford. 400 U.S. at 37)); Cranford v. Lockhart. 975 F.2d 1347, 1349(8th Cir. 1992)(per curiam)
(holding that a plea accompanied by a claim ofinnocence complied with Alford because there was
"strong evidence" of the petitioner's guilt); White Hawk v. Solem. 693 F.2d 825, 829 (8th Cir.
1982)(citing Alford and saying that "[a]s long as there is in fact a strong factual basis supporting
a guilty plea, it is valid even if the defendant protests his innocence"); Wabasha v. Solem. 694
F.2d 155, 157(8th Cir. 1982)(stating that a "factual basis may be constitutionally required when
the guilty plea is accompanied by claims ofinnocence"(citing Alfordlh see also Gregory v. Solem.
774 F.2d 309, 312-13 (8th Cir. 1985)(applying Alford to habeas petitioner's claim that there was
no factual basis for his guilty plea).
However, the Eighth Circuit has never held that Alford clearly established for purposes of
§ 2254(d)(1) that the Constitution requires that pleas accompanied by claims of irmocence be
supported by a strong factual basis. And not all lower courts read Alford as establishing such a
requirement. In Higgason v. Clark. 984 F.2d 203 (7th Cir. 1993), Judge Easterbrook rejected a
habeas petitioner's argument that Alford requires strong evidence of factual guilt:
"If A then B" does not imply "if not-A then not-B." Alford tells us
that strong evidence on the record can show that a plea is voluntary;
it does not hold that only strong evidence on the record permits a
finding of voluntariness. And it certainly does not imply that the
factual-basis requirement of Fed. R. Crim. P. 11(f) and its state-law
counterparts comes from the Constitution.
Higgason. 984 F.2d at 207. The Tenth Circuit reasoned similarly in United States v. Keiswetter.
860 F.2d 992 (10th Cir. 1988), stating that "Neither Alford. nor any case subsequent to Alford.
suggests that 'strong evidence' is the only constitutionally adequate standard for the acceptance of
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an Alford plea. The outer limits of the factual basis sufficient for an Alford plea have yet to be
defined." Id. at 996 n.6; see also Arrington v. Minnesota. No. 19-1377 (MJD/BRT), 2020 WL
2841874, at *5 (D. Minn. Mar. 24, 2020)("[NJever has the Supreme Court stated in a way that
leaves no room for fairminded disagreement that an adequate factual basis is constitutionally
required for an Alford plea ... ."); Crofford v. Rudick. No. C1V-10-279-F, 2010 WL 2899618, at
*5 (W.D. Okla. June 11, 2010) (finding that the Alford decision "did not clearly establish a
constitutional requirement of a factual basis for a guilty plea when a defendant protests his
innocence").
This Court ultimately need not decide whether Alford clearly established a requirement of
a strong factual basis for guilty pleas accompanied by claims of irmocence. As explained in the
next section. Berry is not entitled to relief even if Alford established such a requirement.
C. The Supreme Court of South Dakota's Decision was not Contrary to or an
Unreasonable Application of Clearly Established Federal Law
The Supreme Court of South Dakota's decision was not contrary to or an unreasonable
application of clearly established law even if Alford requires that a strong factual basis support
Berry's plea. The "contrary to" and "unreasonable application of clauses of § 2254(d)(1) present
distinct questions. Bell v. Cone. 535 U.S. 685, 694 (2002). A state court's decision is "contrary
to" clearly established federal law if it reaches "a conclusion opposite to that reached by [the
Supreme Court] on a question of law or if the state court decides a case differently than [the
Supreme Court] has on a set of materially indistinguishable facts." Williams. 529 U.S. at 412-13.
"[A]state-court decision involves an unreasonable application of[Supreme Court] precedent ifthe
state court identifies the correct governing legal rule from [the Supreme Court's] cases but
unreasonably applies it to the facts of the particular state prisoner's case." Id at 407. When, as
here, the state court does not issue a reasoned decision, a federal habeas cotirt "must determine
10
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what arguments or theories ... could have supported the state court's decision." Richter. 562 U.S.
at 102.
The Supreme Court of South Dakota's decision does not violate § 2254(d)(l)'s "contrary
to" clause; the decision is not at odds with a Supreme Court case with materially indistinguishable
facts, and nothing suggests that the Supreme Court of South Dakota applied an incorrect rule of
law to Berry's appeal. Berry must therefore show that the decision unreasonably applied Supreme
Court precedent to his case. To succeed under this clause of § 2254(d)(1), Berry must show that
"there was no reasonable basis" for the Supreme Court of South Dakota's decision. Cullen v.
Pinholster. 563 U.S. 170, 188 (2011)(cleaned up and citation omitted). Or, put a bit differently,
he must show that the decision was "so lacking in justification that there was an error well
imderstood and comprehended in existing law beyond any possibility for fairminded
disagreement." Harrington. 562 U.S. at 103. Showing that the decision was incorrect or even
clear error is not enough. Lockver v. Andrade. 538 U.S. 63, 75 (2003).
The Supreme Court of South Dakota did not unreasonably apply Alford. A conviction
under South Dakota law for attempted sexual contact with a child under the age of sixteen requires
five elements:(1)the defendant knowingly attempted to engage in sexual contact with the victim;
(2)the victim was not the defendant's spouse;(3)the defendant was sixteen years of age or older;
(4) the victim was under sixteen years of age; and (5)the defendant was at least five years older
than the victim. S.D.C.L. § 22-22-7; State v. Bariteau. 884N.W.2d 169,175-76(S.D. 2016); State
V. Deal. 866 N.W.2d 141, 148^9(S.D. 2015). At the change of plea hearing, the prosecutor gave
K.M.B.'s date of birth (a date in March of 1999) and described how, in the fall of 2016, K.M.B
disclosed to police that Berry had sexually abused her over the past five years, beginning when
she was 12 and continuing until she was 17. Doc. 14-1 at 10. During an interview with Child's
11
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Voice,^ the prosecutor explained, K.M.B. disclosed having had vaginal sexual contact and sexual
intercourse with Berry. Doc. 14-1 at 10. K.M.B. also showed police text messages between her
and Berry that were sexual in nature, the prosecutor said. Doc. 14-1 at 10. These messages
discussed Berry using plastic baggies as a contraceptive. Doc. 14-1 at 10. The factual basis
provided by the prosecution might not have been overwhelming, but the Supreme Court of South
Dakota could have reasonably concluded that it satisfied any requirement in Alford for "strong"
evidence of Berry's guilt. This is particularly true given that the Supreme Court has never
explained just how "strong" the factual basis for an Alford plea must be. See Harrington. 562 U.S.
at 101 (explaining that the more general the legal rule at issue, "the more leeway courts have in
reaching outcomes in case-by-case determinations" (citation omitted)). In short, the Supreme
Court of South Dakota's decision was not "so lacking in justification" as to constitute error
"beyond any possibility for fair minded disagreement." Id. at 103.
Moreover,there was other evidence in the record of Berry's guilt. The affidavit supporting
Berry's arrest warrant provided a more detailed version of the factual basis. Habeas Case, 183398, at p. 3-5. It also described K.M.B.'s disclosure that Berry kept the Great Value brand
sandwich bags he sometimes used as a contraceptive when raping her in the upper left portion of
his closet and that she had hidden the plastic baggie Berry used as a contraceptive during their
most recent sexual encounter underneath the spare tire in her car. Habeas Case, 18-3398, at p. 3-
5. The officer who drafted the affidavit averred that he found a bag containing what appeared to
be ejaculate underneath the spare tire in K.M.B.'s car as well as the Great Value sandwich bags in
Berry's closet. Id This affidavit was part of the record when Berry entered his Alford plea, and
^"Child's Voice is a medical evaluation center where children are evaluated for possible physical
and sexual abuse." State v. Brende. 835 N.W.2d 131, 135 n.l (S.D. 2013).
12
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Judge Sabers said that she found a factual basis for Berry's plea "based on the record before" her.
Habeas Case, 18-3398, at p. 3-5; Doc. 14-1 at 15.
The police reports and the Child's Voice interview filed in Berry's criminal case after
Judge Sabers accepted his Alford plea contained further evidence that he sexually abused K.M.B.'*
See Doc. 14-5 at 18-19; Doc. 14-6 at 17; see also Habeas Case, 18-3398, at p. 88-192. Police
reports recoimt K.M.B.'s disclosures that Berry raped her on the porch oftheir house on Christmas
Eve in 2013,raped her in their home when she was 15 after giving her wine coolers, and raped her
on Valentine's Day in 2015 after purchasing her some special underwear. Habeas Case, 18-3398,
at p. 179, 180. K.M.B. also showed the police text messages from Berry discussing his
masturbating, having to wear "bags", and the bags giving K.M.B. infections. Habeas Case, 183398, at p. 135. In the Child's Voice interview, K.M.B. described how Berry began showing her
pornography when she was 12, used condoms or plastic sandwich bags as contraceptives when
raping her, and forced her to engage in oral sex with him.^ Habeas Case, 18-3398, at p. 151. The
reports and interview were included in the record for Berry's appeal to the Supreme Court of South
Dakota, and the State argued that these documents were further evidence that a strong factual basis
supported Berry's Alford plea.^ Doc. 14-6 at 17-18.
Berry argues that the factual basis was insufficient because the prosecutor did not introduce
any DNA evidence, a rape kit, or sworn testimony, instead relying solely on K.M.B.'s allegations.
'^These police reports and the Child's Voice interview were filed in the record as part of the
psychosexual evaluation Judge Sabers ordered for Berry. See Doc. 14-5 at 18-19; Doc. 14-6 at
17; see also Habeas Case, 18-3398, at p. 88-192.
^K.M.B. also made a statement at Berry's sentencing. Habeas Case, 18-3398, at p. 238-251. She
described how Berry had been raping her since she was 11 and the effect this had on her. Id
^The State does not rely on the police reports and Child's Voice interview in its motion for
summary judgment. Doc. 14. When discussing the facts of Berry's case, however, the State does
cite to the affidavit submitted in support of Berry's arrest warrant. See Doc. 14 at 2-3; Doc. 14-2
(affidavit supporting arrest warrant); Habeas Case, 18-3398, at p. 3-5.
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Doc. 1 at 5; Doc. 10.' But a prosecutor need not introduce evidenee corroborating a victim's
testimony to sustain a conviction for sexual abuse. See United States v. Gabe. 237 F.3d 954, 961
(8th Cir. 2001)(holding that victim's testimony was enough to sustain a conviction for sexual
abuse despite the lack ofany corroborating evidence). More importantly, Berry's arguments about
certain evidence not being introduced at the change of plea hearing fall far short of showing that
the Supreme Court of South Dakota unreasonably applied Alford. Even if Alford requires "strong"
evidence of guilt, it did not specify the form such evidence must take or establish that certain types
ofevidence are always required. Berry also claims that K.M.B. is not credible for several reasons.
Doc. 10; Doc. 17-1 at 1-2. As the Eighth Circuit recognized long ago, however, an assertion that
the prosecution's witnesses are lying is implicit in almost every Alford plea. United States v.
White. 724 F.2d 714, 716 (8th Cir. 1984)(per curiam). Berry could have gone to trial if he felt
K.M.B.'s testimony was unbelievable. Id
Berry also seems to argue that the factual basis was insufficient because it discussed him
having sexual intercourse with K.M.B. rather than the less serious crime of attempted sexual
contact. Doc. 10 at 1-2. Of course, a person engaging in repeated episodes of sexual intercourse
with a minor necessarily must be intending and attempting sexual eontact.^ Berry of course
'Berry cites to South Dakota's Rules of Criminal Procedure in support of his argument that the
factual basis was insufficient. Doc. 10 at 2; Doc. 17 at ^ 7. But South Dakota's procedural rules
requiring a factual basis for a plea do not come from the Constitution, Higgason. 984 F.2d at 207,
and a violation of these rules cannot support habeas relief, Cranford. 975 F.2d at 1349 (holding
that state court's failure to eomply with a state rule of criminal procedure requiring a factual basis
for a guilty plea did not warrant habeas relief); Estelle v. McGuire. 502 U.S. 62, 67-68 (1991)
("[I]t is not the province ofa federal habeas court to reexamine state-court determinations on statelaw questions. In conducting habeas review, a federal court is limited to deciding whether a
conviction violated the Constitution, laws, or treaties of the United States.").
^This Court recognizes that the statute under which Berry pleaded guilty to attempted sexual
contact with a child under age sixteen addresses crimes that are not actually completed. S.D.C.L.
§22-4-1.
14
Case 4:19-cv-04188-RAL Document 18 Filed 01/07/22 Page 15 of 16 PageID #: 391
received a significant benefit under the plea agreement in being allowed to enter an Alford plea to
the lesser charge of attempted sexual contact. Berry's argument ofan insufficient factual basis for
attempted sexual contact with K.M.B. when there was a factual basis for sexual intercourse does
not render the Supreme Court of South Dakota's decision objectively unreasonable.
Finally, Berry claims that he did not understand that an Alford plea "was a guilty plea,"
Doc. 17 at ^ 3, and that he never wanted to enter into the plea agreement. Doc. 10 at 2. The record
belies this claim. Berry confirmed at the change of plea hearing that the Alford plea was his idea,
that he understood that his Alford plea would operate as a guilty plea, and that he still wanted
Judge Sabers to accept his Alford plea. Doc. 14-1 at 12-14; Doc. 16 at
6, 8; Doc. 17 at
6, 8.
Berry's statements at the change of plea hearing "carry a strong presumption of verity," and Berry
has not rebutted this presumption. Nguven v. United States, 114 F.3d 699, 703 (8th Cir. 1997)
(cleaned up and citation omitted). Given the facts in the record suggesting that Berry sexually
abused K.M.B., Berry's statements during the change of plea hearing, and the significant benefit
Berry received under the plea agreement, the Supreme Court of South Dakota could have
reasonably concluded that Berry's plea was knowing, voluntary, and intelligent.
D. Certificate of Appealability
A petitioner cannot appeal a final order denying a § 2254 petition without a certificate of
appealability. 28 U.S.C. § 2253(c). A district court carmot grant a certificate of appealability
unless the petitioner makes "a substantial showing of the denial of a constitutional right." 28
U.S.C. § 2253(c)(2). To meet this standard, the "petitioner must demonstrate that reasonable
jurists would find the district court's assessment of the constitutional claims debatable or wrong."
Slack V. McDaniel. 529 U.S. 473, 484 (2000). Because reasonable jurists would not find this
15
Case 4:19-cv-04188-RAL Document 18 Filed 01/07/22 Page 16 of 16 PageID #: 392
Court's rejection of Berry's claim wrong or debatable, this Court will not issue a certificate of
appealability.^
IV.
Conclusion
For the reasons stated above, it is hereby
ORDERED that Respondents' Motion for Summary Judgment, Doc. 13, is granted. It is
further
ORDERED that Berry's Petition for Writ of Habeas Corpus, Doc. 1, is dismissed. It is
further
ORDERED that no certificate of appealability shall issue.
DATED this
day of January, 2022.
BY THE COURT:
ROBERTO A. LANGE
CHIEF JUDGE
^This Court already denied a certificate ofappealability for the claims on which Berry procedurally
defaulted. Doc. 7 at 18; see Khaimov v. Crist. 297 F.3d 783, 786 (8th Cir. 2002)(discussing the
standard for a certificate of appealability on claims that are procedurally defaulted).
16
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