Rhines v. Weber
Filing
334
Memorandum Opinion and ORDER denying as moot 310 Motion to Seal Document; denying 313 Motion to Seal Document and denying 315 Motion to Seal Document, motions will be unsealed in five days unless they are withdrawn within five days; denying 313 -1 Motion for Expert Access. Signed by U.S. District Judge Karen E. Schreier on 4/12/16. (SLW)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CHARLES RUSSELL RHINES,
5:00-CV-05020-KES
Plaintiff,
MEMORANDUM OPINION AND
ORDER
vs.
DARIN YOUNG, Warden, South Dakota
State Penitentiary;
Defendant.
Petitioner, Charles Rhines, moves the court to seal his motion for expert
access and his reply brief. Rhines’s motion for expert access seeks an order
from this court allowing Dr. Robert D. Shaffer to conduct a neuropsychological
examination of Rhines. Respondent opposes the motions to seal and the motion
for expert access. For the following reasons, the court denies the motions to
seal and denies the motion for expert access.
BACKGROUND
The procedural history of this case is more fully set forth in the court’s
February 16, 2016 order granting summary judgment in favor of respondent.
Docket 305. The following facts are relevant to Rhines’s pending motion:
Rhines is a capital inmate at the South Dakota State Penitentiary in
Sioux Falls, South Dakota. He was convicted of premeditated first-degree
murder for the death of Donnivan Schaeffer and of third-degree burglary of a
Dig’Em Donuts Shop in Rapid City, South Dakota. A jury found that Rhines
should be subject to death by lethal injection, and a state circuit court judge
imposed the sentence. On February 16, 2016, this court granted respondent’s
motion for summary judgment and denied Rhines’s federal petition for habeas
corpus. On March 9, 2016, Rhines moved the court for an order allowing Dr.
Schaffer to conduct a comprehensive neuropsychological evaluation of Rhines
at the penitentiary.1
Rhines argues that Dr. Shaffer should be permitted to conduct his
examination because Dr. Shaffer’s evaluation is a component of Rhines’s
federal habeas proceeding. Dr. Shaffer requires as a part of his examination
that Rhines’s hands remain unshackled and that Rhines be allowed to use his
hands during several tests. Rhines argues that he attempted to schedule the
evaluation through the South Dakota Department of Corrections (DOC), but
DOC personnel insist that Rhines first obtain a court order before Dr. Shaffer
can be given access to Rhines at the prison.
Correspondence between Rhines’s attorneys and DOC personnel is
attached to Rhines’s motion. In that correspondence, DOC personnel state that
the reason Dr. Shaffer cannot receive the type of access that Rhines requests is
because of prison safety concerns. More specifically, DOC policy requires that
capital inmates such as Rhines remain restrained in the presence of visitors.
DOC personnel are concerned by Rhines’s behavior while he has been
incarcerated and believe that he may pose a danger to others.
Rhines filed a substantively similar motion on March 7, 2016. Docket
310. The present motion is styled as an amended motion. Thus, the court
considers the March 7 motion mooted by the filing of the amended motion.
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DOC personnel also argue–and respondent agrees–that Dr. Shaffer
cannot be given access to Rhines for any reason unless Rhines complies with
SDCL 23A-27A-31.1. That statute provides:
From the time of delivery to the penitentiary until the infliction of
the punishment of death upon the defendant, unless lawfully
discharged from such imprisonment, the defendant shall be
segregated from other inmates at the penitentiary. No other person
may be allowed access to the defendant without an order of the trial
court except penitentiary staff, Department of Corrections staff, the
defendant's counsel, members of the clergy if requested by the
defendant, and members of the defendant's family. Members of the
clergy and members of the defendant's family are subject to
approval by the warden before being allowed access to the
defendant.
SDCL 23A-27A-31.1 (emphasis added). Respondent contends that Dr. Shaffer
is not a member of the penitentiary staff, DOC staff, defendant’s counsel, a
member of the clergy, or a member of Rhines’s family. Thus, respondent argues
that DOC personnel do not have the authority to grant Dr. Shaffer access to
Rhines. Rather, Rhines must first obtain a court order. Although Rhines
disagrees with respondent’s contention,2 Rhines asks this court to issue an
order allowing Dr. Shaffer to conduct his examination.
Rhines argues that Dr. Shaffer is a member of “the defendant’s counsel”
because Dr. Shaffer has been hired as an expert. The court is unaware of any
authority interpreting SDCL 23A-27A-31.1. The court concludes that the
statute’s “No other person” language precedes and, therefore, explicitly limits
the individuals who can be given access to a capital inmate without a court
order. Thus, the language pertaining to “the defendant’s counsel” is limited to
the defendants’ attorneys and does not include other members of the defense
team generally.
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DISCUSSION
I.
Motions to Seal
Rhines originally filed his motion for expert access ex parte. The court
denied the motion and directed Rhines to serve a copy of the motion on
respondent because Rhines’s request may implicate the legitimate penological
interests of the state of South Dakota. Rhines now requests that his motion
and his reply brief be sealed because their contents implicate the attorneyclient privilege or attorney work product doctrine.
The public has a “general right to inspect and copy public records and
documents, including judicial records and documents.” In re Neal, 461 F.3d
1048, 1053 (8th Cir. 2006) (quoting Nixon v. Warner Commc'ns, Inc., 435 U.S.
589, 597 (1978)). The public right, however, is not absolute. Id. (quoting id. at
598). The Eighth Circuit has held that “ ‘only the most compelling reasons can
justify non-disclosure of judicial records.’ ” Id. (quoting In re Gitto Global Corp.,
422 F.3d 1, 6 (1st Cir. 2006)). Whether court records should be sealed is a
matter committed to the discretion of the district court. Webster Groves Sch.
Dist. v. Pulitzer Pub. Co., 898 F.2d 1371, 1376 (8th Cir. 1990).
Generally, the attorney-client privilege extends to confidential
communications exchanged between a client and his or her attorney. See In re
Grand Jury Proceedings, 791 F.2d 663, 666 (8th Cir. 1986). “Confidential
communications encompass that information communicated on the
understanding that it would not be revealed to others[.]” Id. By contrast, the
work product doctrine protects factual information compiled by an attorney or
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the attorney’s “mental impressions, conclusions, opinions or legal theories.”
Baker v. Gen. Motors Corp., 209 F.3d 1051, 1054 (8th Cir. 2000). A party “must
show the materials were prepared in anticipation of litigation, i.e., because of
the prospect of litigation” for work product protection to apply. PepsiCo, Inc. v.
Baird, Kurtz, & Dobson LLP, 305 F.3d 813, 817 (8th Cir. 2002).
Rhines argues only generally that the attorney-client privilege or the
work product doctrine applies. The bulk of Rhines’s motion and reply consists
of citations to caselaw involving a criminal defendant’s Sixth Amendment right
to counsel and the American Bar Association’s guidelines for defense attorneys.
Rhines presumably included this information as legal authority for why his
motion should be granted. The arguments do not, however, involve
communications between an attorney and Rhines. Similarly, they are not
entitled to work product protection any more than an ordinary brief to the
court. The other major component of Rhines’s submissions consists of
descriptions and copies of emails sent between Rhines’s attorneys and DOC
personnel discussing whether Dr. Shaffer will be allowed to conduct his
examination. Also included are pictures of Dr. Shaffer’s equipment and
descriptions of the tests he would perform. These emails are not attorney-client
communications but rather communications involving third-parties to which
the privilege does not apply. United States v. Hatcher, 323 F.3d 666, 674 (8th
Cir. 2003). Likewise, the communications are not entitled to work product
protection because they are not materials prepared in anticipation of litigation.
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The public has a right to inspect court records and documents. Rhines’s
bare desire for secrecy is not sufficient to overcome the public’s interest. Thus,
the court will not seal Rhines’s motion or his reply brief.
II.
Motion for Expert Access
Rhines argues that this court may enter an order under SDCL 23A-27A-
31.1 and direct the DOC to give Dr. Shaffer access to Rhines at the
penitentiary. The court disagrees. Rhines is confined in a state penitentiary,
not a federal penitentiary. The statute that Rhines contends authorizes access
is a state law, not a federal law. It provides for “other person[s]” not specified in
the statute to seek “an order of the trial court” before those persons can be
afforded access to the inmate “at the penitentiary.” In Rhines’s case, the trial
court is the Circuit Court for the Seventh Judicial Circuit of South Dakota.
Rhines has not attempted to obtain an order from the state trial court.
Principles of comity and federalism caution against the assertion of
power by one sovereign over another without a clear grant of that authority in
the first instance. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 422
(2003). “Congress enacted [the Antiterrorism and Effective Death Penalty Act of
1996] to reduce delays in the execution of state and federal criminal sentences,
particularly in capital cases and to further the principles of comity, finality,
and federalism.” Woodford v. Garceau, 538 U.S. 202, 206 (2003) (internal
citations and quotations omitted). Also, the DOC’s safety concerns are not
easily disregarded because courts “must accord substantial deference to the
professional judgment of prison administrators, who bear a significant
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responsibility for defining the legitimate goals of a corrections system and for
determining the most appropriate means to accomplish them.” Overton v.
Bazzetta, 539 U.S. 126, 132 (2003); see also Procunier v. Martinez, 416 U.S.
396, 405 (1974) (“Moreover, where state penal institutions are involved, federal
courts have a further reason for deference to the appropriate prison
authorities”), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401
(1989). The court concludes that SDCL 23A-27A-31.1 does not authorize this
court to grant Rhines the access he requests.
Rhines has not otherwise provided a statute or rule of law that enables
this court to direct the DOC to provide Dr. Shaffer access to Rhines at the
penitentiary. Rather, Rhines cites generally to a criminal defendant’s Sixth
Amendment right to receive the effective assistance of counsel. There is not,
however, a constitutional right to counsel in federal habeas actions. Ryan v.
Gonzales, 133 S. Ct. 696, 703-04 (2013). Section 3599(a)(2) of title 18 provides
a statutory right for indigent capital inmates to receive federally funded
representation and investigative services. 18 U.S.C. § 3599(a)(2). The court may
also authorize federal funding “if reasonably necessary” for the purpose of
hiring an expert to conduct a mental health examination. 18 U.S.C. § 3599(f);
see Edwards v. Roper, 688 F.3d 449, 462 (8th Cir. 2012). But Rhines is not
asking for additional funds, however, and nothing in the statute enables the
court to command state prison personnel in the manner Rhines suggests. Cf.
Baze v. Parker, 711 F. Supp. 2d 774, 779 (E.D. Ky. 2010) (holding § 3599(f)
“does not give the Court the authority to issue an order granting a defendant
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access to certain state officials or others in the hopes that they will provide
information relevant to the clemency process”) aff’d 632 F.3d 338 (6th Cir.
2011).
The essence of Rhines’s motion is that Dr. Shaffer should be allowed to
conduct his examination because Dr. Shaffer’s findings would be a component
of Rhines’s federal habeas proceeding. More specifically, Dr. Shaffer’s findings
could be used to support Rhines’s arguments that Rhines received ineffective
assistance of counsel because his state court trial attorneys inadequately
investigated and presented mitigating evidence. See Docket 313-1 at 8
(“Similarly, in Mr. Rhines’s case, the evidence developed by trial counsel
encompassed only a narrow set of sources.”).
Even if this court had the authority to facilitate Rhines’s request, it
would decline to exercise that authority for several reasons. First, the court has
already denied all of Rhines’s claims for federal habeas relief, including his
ineffective assistance claims. See Docket 305 at 81-117. Second, Rhines was
denied leave previously to supplement the record and to amend his federal
habeas petition to include new evidence in support of his exhausted ineffective
assistance claims.3 That evidence included “affidavits from three experts who
have reviewed Rhines’s case file and records” and who “made their own
findings and conclusions concerning Rhines, his background, his mental
health, and the effectiveness of Rhines’s trial counsel’s mitigation efforts.”
The court has also twice rejected Rhines’s argument that the narrow
exception for presenting unexhausted ineffective assistance claims announced
in Martinez v. Ryan, 132 S. Ct. 1309 (2012), applies in Rhines’s case. See
Docket 272 at 12-13; Docket 304 at 16-20.
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Docket 304 at 8. Dr. Shaffer was one of those experts who submitted an
affidavit and related findings. Docket 281-2; Docket 282-2. The court denied
Rhines’s motions in light of the Supreme Court’s decision in Cullen v.
Pinholster, 563 U.S. 170 (2011). Specifically, the court found that
Rhines’s case is indistinguishable from Pinholster. Here, like in
Pinholster, Rhines argued that his trial attorneys ineffectively
investigated and presented mitigation evidence. As in Pinholster,
Rhines’s arguments were raised and rejected on the merits in his
state habeas. Similar to Pinholster, Rhines was permitted to return
to state court after this court determined that Rhines’s federal
petition contained both exhausted and unexhausted claims. As in
Pinholster, Rhines received an adjudication on the merits of all of
his claims in state court before returning to federal court. And
now, like in Pinholster, Rhines seeks to bolster his exhausted
ineffective assistance claims with new evidence that was not
presented to or considered by the state court. Just like in
Pinholster, this new evidence consists of contemporary expert
opinion evidence that suggests Rhines’s trial attorneys failed to
investigate and present additional mitigation evidence. But, as the
Court held in Pinholster, this court’s review of Rhines’s exhausted
claims is subject to § 2254(d) and is limited to the evidence that
was before the state court that adjudicated the claims.
Docket 304 at 18-19. The court could not, therefore, consider Dr. Shaffer’s
findings even if the court had not already denied Rhines’s claims. Id. at 22
(“Consequently, this court cannot consider this new evidence”).
Finally, construing Rhines’s motion as one for an evidentiary hearing
would obtain the same result. Section 2254(e)(2) governs the circumstances in
which an evidentiary hearing may be held. Williams v. Taylor, 529 U.S. 420,
437 (2000). That section provides:
(2) If the applicant has failed to develop the factual basis of a claim
in State court proceedings, the court shall not hold an evidentiary
hearing on the claim unless the applicant shows that—
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(A) the claim relies on-(i) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that
was previously unavailable; or
(ii) a factual predicate that could not have been
previously discovered through the exercise of due
diligence; and
(B) the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.
28 U.S.C. § 2254(e)(2). The Supreme Court has held that “[s]ection 2254(e)(2)
imposes a limitation on the discretion of federal habeas courts to take new
evidence in an evidentiary hearing.” Pinholster, 563 U.S. at 186.
The Eighth Circuit’s decision in Wright v. Bowersox, 720 F.3d 979 (2013)
is instructive on this issue. The Wright decision involved a § 2254 petitioner
who waived his right to counsel and was allowed to represent himself at trial.
Id. at 982. He was convicted by a jury. Wright argued in state and federal
habeas that the state trial court erred in determining that he was competent to
stand trial and to waive his right to counsel. Id. at 982-83. Wright also moved
for an evidentiary hearing in federal court to present testimony and a report
from Dr. Stephen Peterson in support of his argument that he was not
competent at the time of his trial. Id. at 987. The district court denied Wright’s
request, and the Eighth Circuit affirmed. The Eighth Circuit held
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Second,4 this hypothetical rebuttal evidence, even if it were to
prove Wright's incompetence, would still not entitle him to habeas
relief on his asserted grounds. Even assuming Dr. Peterson's
testimony demonstrated Wright to have been incompetent at the
time of his trial and waiver of counsel, the testimony was not
available to the state court at the time of its decision. Accordingly,
this testimony would have no bearing on whether the state court's
decision was based on an unreasonable determination of the facts
because the testimony was not available for consideration by the
state court. Cullen v. Pinholster, ––– U.S. ––––, 131 S.Ct. 1388,
1398–1401, 179 L.Ed.2d 557 (2011).
Id. Thus, the court could not consider Dr. Shaffer’s findings even if the court
granted Rhines an evidentiary hearing.
CONCLUSION
Rhines has not attempted to comply with the state statute governing
access to capital inmates in the state penitentiary. Rhines has also not
identified an applicable statute or rule of law enabling this court to direct the
DOC personnel to give Dr. Shaffer access to Rhines in lieu of complying with
the state statute. And assuming the court has the authority to do so, Rhines
has not identified adequate grounds justifying the relief that he seeks.
Accordingly, it is
ORDERED that Rhines’s motion to seal (Docket 310) is denied as moot.
IT IS FURTHER ORDERED that Rhines’s motion to seal (Docket 313 and
Docket 315) is denied. The motions will be unsealed in five days, unless they
are withdrawn within five days.
The Eighth Circuit first observed that Wright “has not established he
was unable to develop his claim in state court.” Wright, 720 F.3d at 987; see 18
U.S.C. § 2254(e)(2). Rhines has similarly not made such a showing.
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IT IS FURTHER ORDERED that Rhines’s motion for expert access
(Docket 313-1) is denied.
Dated April 12, 2016.
BY THE COURT:
/s/Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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