Engesser v. Dooley

Filing 77

ORDER granting writ of habeas corpus and denying 25 Motion to Dismiss. Signed by Chief Judge Karen E. Schreier on 9/30/2011. (Attachments: # 1 Appendix State Court Findings of Fact) (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
OAKLEY BERNARD ENGESSER,
Petitioner,
vs.
ROBERT DOOLEY, Warden,
Yankton Minimum Unit,
Respondent.

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Civ. 10-5039-KES

MEMORANDUM OPINION AND
ORDER GRANTING WRIT OF
HABEAS CORPUS

Petitioner, Oakley Bernard Engesser, petitions for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. This case is both factually and
procedurally rare. Here, a South Dakota circuit court found that Engesser’s
trial counsel was constitutionally ineffective for failing to interview and call to
testify eyewitnesses Eric Eckholm and Charlotte Fowler. But the South
Dakota Supreme Court reversed, finding that Engesser had not demonstrated
that his first state habeas counsel was ineffective, which is a required
threshold showing in a successive petition in South Dakota state court.
Unless this threshold showing is met, a South Dakota state court may not
reach the alleged error at trial. Engesser received authorization from the
Eighth Circuit Court of Appeals to present a successive petition claiming that
his trial counsel was ineffective because there is new evidence of Engesser’s
factual innocence that could not have been discovered earlier. Nearly ten
years after Engesser’s conviction for vehicular battery and vehicular homicide,

eyewitness Phillip Syverson came forward and testified that he saw a woman
driving the red Corvette minutes before the fatal crash.
Respondent moves to dismiss Engesser’s petition, arguing that it does
not meet the standards for filing a successive federal habeas corpus petition
set forth in the Anti-Terrorism and Effective Death Penalty Act of 1996
(AEDPA). Engesser contends that his petition is governed by the standard
announced in Schlup v. Delo, 513 U.S. 298 (1995), which permits a petitioner
who contends he is actually innocent to seek federal review of otherwise
procedurally defaulted claims.
Because Engesser’s claims satisfy either gateway standard, the court
considers his ineffective assistance of counsel claim on the merits. Engesser
has demonstrated that his trial counsel’s performance in failing to interview
and call Eckholm and Fowler as witnesses was constitutionally deficient and
he was prejudiced by this error.
PROCEDURAL HISTORY
Engesser was convicted of vehicular homicide and two counts of
vehicular battery in 2001 by a South Dakota jury. He was sentenced to
twenty-five years’ imprisonment in the South Dakota State Penitentiary. The
sole question at Engesser’s jury trial was whether he was the driver of
Dorothy Finley’s red Corvette when it crashed on July 30, 2000, killing Finley
and injuring the occupants of a second vehicle that the Corvette struck.
Engesser appealed his conviction to the South Dakota Supreme Court and a
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divided court affirmed his conviction. State v. Engesser, 661 N.W.2d 739 (S.D.
2003).
On September 4, 2003, Engesser filed his first petition for a writ of
habeas corpus in state court. Attorney Matthew Kinney was appointed to
represent Engesser. Engesser raised a number of claims in his petition. His
petition was denied and the state circuit court and the South Dakota
Supreme Court denied his request for a certificate of probable cause.
Engesser, acting pro se, then filed his first federal petition for a writ of
habeas corpus. Engesser raised six claims, which this court rejected.
Engesser v. Dooley, No. 04-5065, 2005 WL 1278473 (D.S.D. May 26, 2005). A
divided panel of the Eighth Circuit Court of Appeals affirmed. Engesser v.
Dooley, 457 F.3d 731 (8th Cir. 2006), cert. denied, 549 U.S. 1223 (2007).
Subsequently, Engesser filed his second habeas petition in state court,
which raised a number of ineffective assistance of trial and habeas counsel
claims. Engesser received appointed counsel. After a hearing, South Dakota
Circuit Judge Randall Macy granted habeas relief, finding that Engesser’s
first habeas counsel was ineffective because he failed to identify eyewitnesses
Eckholm and Fowler in the prior habeas proceeding and his trial counsel was
ineffective for failing to investigate and call Eckholm and Fowler as witnesses
at trial. The South Dakota Supreme Court reversed, finding that Engesser
had failed to demonstrate ineffective assistance of his first habeas counsel,

3

which is a requirement before a successive petition can be considered in
South Dakota state court. Engesser v. Dooley, 759 N.W.2d 309 (S.D. 2008).1
Engesser filed a third state petition. Relief was denied and Engesser did
not seek a certificate of probable cause from the South Dakota Supreme
Court.
Engesser then sought permission to file a successive federal petition
with the Eighth Circuit Court of Appeals. Respondent filed a motion to
dismiss, arguing that Engesser had not satisfied the requirements for filing a
successive petition set forth at 28 U.S.C. § 2244(b). On June 2, 2010, the
Eighth Circuit Court of Appeals authorized Engesser to present a successive
petition “to present a new claim that counsel was ineffective because of new
evidence of Engesser’s factual innocence that could not have been discovered
earlier.” Docket 5-1. On June 30, 2011, this court held an evidentiary hearing
on Engesser’s petition. Respondent objected to the court holding an
evidentiary hearing, and the court reserved ruling on the objection. As
discussed infra, Engesser has met the standard set forth at 28 U.S.C.
§ 2254(e)(2) necessary for a federal evidentiary hearing on his petition. Thus,
respondent’s objection to the evidentiary hearing is overruled.

1

Respondent disagrees with this characterization of the South Dakota
Supreme Court’s ruling, contending the court rejected Engesser’s claim that
his trial counsel was ineffective for failing to call Fowler and Eckholm as
witnesses. The characterization of the South Dakota Supreme Court’s ruling is
discussed later in this opinion. See infra Part III.
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FACTUAL BACKGROUND
I.

The Accident
On July 30, 2000, Engesser and Dorothy Finley were at the Full

Throttle Saloon in Sturgis, South Dakota. This was just days before the
Sturgis Motorcycle Rally was scheduled to begin. They left the Full Throttle in
Finley’s red Corvette at around 6 p.m. Trial Transcript (TT) at 228, 276, 278,
280.
Nearly two hours later, at approximately 8:10 p.m., the Corvette struck
a minivan from behind on Interstate 90. Id. at 202-04, 298, 544, 607. The
minivan, carrying the MacPherson family, was traveling on the interstate and
pulled over to the left lane of traffic to avoid two vehicles parked along the
shoulder. Id. at 305-6. Those vehicles belonged to Eckholm and Fowler. Just
past the parked vehicles, the passenger side of Finley’s Corvette struck the
MacPherson vehicle. Id. at 307, 308, 315-318. The MacPherson family
sustained minor injuries in the crash. Id. at 312-13, 324, 326. The Corvette
rolled and eventually came to a stop upside down in the median. Id. at 33233. Engesser was ejected from the Corvette and Finley was trapped inside.
Finley was pronounced dead at the scene of the accident. Id. at 405. Engesser
sustained serious injuries. Id. at 433. Tests later revealed that both Finley
and Engesser had been drinking. Id. at 414, 476, 479.

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II.

Evidence at Trial
The sole issue at Engesser’s jury trial was whether he was driving

Finley’s Corvette at the time of the accident. The state’s theory relied on
several factors, including Engesser’s placement in the median, Finley’s
placement inside the Corvette, what one expert witness referred to as
“accident-injury relationships,” and the position of the driver’s seat inside the
Corvette. The defense theory was that Finley was the driver, or put another
way, that the evidence did not prove beyond a reasonable doubt that Engesser
was the driver. The state called 19 witnesses at trial. The defense did not call
any witnesses.
Mary Redfield, a certified registered nurse anesthetist, came upon the
accident and saw the Corvette in the median. She testified that Engesser was
lying in the median, six to ten feet from the driver’s door of the Corvette. Id. at
296. When Redfield got to Engesser, he was not breathing so she lifted his jaw
to clear his airway. Id. at 295. Redfield continued to hold his jaw until help
arrived. Id. Redfield also testified that she could see inside the driver’s side of
the vehicle, because she remembered seeing the steering wheel. Id. at 296.
Linda Keszler also came upon the accident and saw the Corvette lying
upside down in the median of the interstate. Id. at 289. Keszler testified that
Engesser was lying “just outside the driver’s door” and that the driver’s door
of the Corvette was “open or off.” Id. at 290-91.

6

Mike Walker, a deputy with the Meade County Sheriff’s Department,
was one of the first law enforcement officers to arrive at the scene of the
accident. Id. at 330-31. He testified that Engesser was lying “just outside the
driver’s door” or approximately “five to ten feet” from the driver’s door of the
Corvette. Id. at 331-32, 335. The driver’s door of the upside down Corvette
was open and Finley was on the passenger side of the vehicle. Id. at 333, 340.
Law enforcement officers were unable to reach her through the passenger side
door because of damage to the passenger side of the vehicle. Id. at 336. By the
time Deputy Walker arrived at the scene of the accident, many cars had
stopped and people were “running across the interstate.” Id. at 337. Deputy
Walker asked people if they had witnessed the crash, and if they had not, he
told them to move on. Id. If they had witnessed the crash, Deputy Walker
asked them to pull their car off the interstate, stay out of the way of
ambulance and fire department workers, and wait for law enforcement to take
their statements. Id. at 338. Deputy Walker then collected information
regarding the vehicle and people for further investigation. Id.
Ron Koan, the fire chief for the city of Sturgis, also responded to the
crash. When he arrived at the scene, he observed Engesser “lying outside the
car on the ground” and estimated him to be “30 feet maybe” from the driver’s
side door. Id. at 374. Another emergency responder, LaVerne Hermanson,
estimated that Engesser was “10, 15 feet, maybe a little more away” from the
Corvette. Id. at 385.
7

Highway Patrol Officer Ed Fox was the officer in charge of investigating
the crash. Id. at 348, 358. At the scene of the accident, Trooper Fox began to
take witnesses’ statements. Id. at 521. Two of the witnesses interviewed were
Eckholm and Fowler. Once Trooper Fox finished interviewing all of the
witnesses, he walked down to the Corvette, which was surrounded by broken
glass. Id. at 522. Although the passenger side window was completely gone,
the windshield and roof on top of the Corvette were intact. Id. at 546. During
trial, Trooper Fox testified that he believed it was unlikely that the passengers
of the Corvette had been tossed around much due to the size of the vehicle.
Id. at 605. He described the inside of the Corvette as “similar to the cockpit of
an airplane,” with a console and two bucket seats that sit very low. Id. at 555.
Trooper Fox testified that, based on this information and Engesser’s size, he
did not believe it was likely that Engesser was ejected out of the window. Id.
at 605. Trooper Fox also noted that the driver’s seat was positioned in such a
manner that “somebody 5'9" would have been comfortable driving the
vehicle.” Id. at 606. Engesser is 5'9" tall, while Finley was 5'4" tall. Id. at 541,
543. Trooper Fox testified that before finalizing his investigation he followed
up with witnesses who provided statements on the night of the accident. Id. at
534. Finally, he stated that he was unable to “get any information from any
witnesses as far as whether it was a male or female or any information at all
about the driver.” Id. Trooper Fox further testified that he believed Engesser

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had lied to him about who was driving the Corvette when Fox interviewed
him. Id.
Highway Patrol Officer Anthony Melarango, an accident
reconstructionist, also testified at Engesser’s trial. Trooper Melarango
determined that the Corvette was traveling at a speed of 112 miles per hour,
or 164 feet per second, prior to the crash. Id. at 501. The Corvette rolled
approximately one and a half times upon impact. Id. at 503, 507.
Rex Riis, the director of the South Dakota State Forensic Lab, examined
the Corvette on August 23, 300. Id. at 616, 618. Riis was consulted to “give
his opinion about what could be done in terms of trace evidence” in the
Corvette. Id. at 618. Riis explained that the evidentiary value of any bodily
fluids in the vehicle was diminished significantly because the Corvette had
rolled and the occupants were not wearing their seat belts. Id. at 620. The
occupants would have been tossed to and fro inside the car and bodily fluids,
such as blood, could have been distributed throughout the car. Id. at 621.
Riis suggested that the evidentiary value rested with “looking at accident
injury relationships.” Id. at 623. Riis testified that the “damage to the
automobile in relationship to injuries sustained was very significant in the
interpretation of where the occupants were . . . .” Id. at 644. On crossexamination, Riis admitted that to preserve any bodily fluids inside the
Corvette, it should have been stored indoors away from the elements rather
than outdoors. Id. at 633.
9

Dr. Daniel Hoffman, the emergency room physician who treated
Engesser, testified that based on the photographs of the Corvette, he would
expect a person sitting on the passenger side of the vehicle to have sustained
fairly significant injuries. Id. at 452, 453.
Roana Clifford, Beau Goodman, Todd and Jackie MacPherson, Craig
Johnson, Tom Wilts, Jennifer Jordan, Dr. Robert Looyenga, and Becky Feist
also testified for the government. Clifford’s testimony placed Engesser and
Finley at the Full Throttle Saloon before the accident. She estimated that
Engesser and Finley left at around six p.m. TT at 280-81. Goodman witnessed
the crash, but he did not see who was driving the Corvette. Id. at 286-87.
Todd and Jackie MacPherson were in the minivan that the Corvette struck;
they testified regarding their memory of the accident and the injuries they
suffered in it. Id. at 301-328. Craig Johnson, a deputy with the Meade County
Sheriff’s Office, who had responded to the accident, testified that Finley was
inside the Corvette and her body had to be extricated from the vehicle. Id. at
352-55. Tom Wilts was the coroner who pronounced Finley dead at the scene
of the accident. Id. at 402. He noted that Finley had a head injury on her right
side and died of cerebral hemorrhage. Id. at 404-05. Jennifer Jordan, a
medical technologist, testified that she took a sample of Engesser’s blood to
test his blood alcohol content (BAC) and gave it to Trooper Fox. Id. at 458,
459. Dr. Robert Looyenga, a chemist, testified that he did the blood alcohol
analysis of Engesser’s blood. Id. at 475. Engesser’s BAC at the time of the
10

blood draw was .081. Id. at 477. Extrapolated back to the time of the
accident, Dr. Looyenga estimated that Engesser’s BAC was .125. Id. at 479.
Finally, Becky Feist, Finley’s daughter, testified that it was her mother’s habit
to place her purse at her feet when she rode in a car. Id. at 648. When Feist
and other family members were permitted to see the Corvette at the lot where
it was stored after the accident, they found Finley’s purse underneath the
dashboard on the passenger’s side. Id.
III.

The Hearing on the Second State Habeas
Eight witnesses testified during a hearing on Engesser’s second state

habeas. This was the first time that Eckholm and Fowler testified in court
regarding the accident.
Beau Goodman, who also testified during Engesser’s trial, testified that
he had seen Finley’s Corvette prior to the accident. Transcript, Hearing, State
Habeas 06-578 at 4. Goodman also stated that Finley was a fast driver. Id.
The next witness was Matthew Kinney, who had represented Engesser
in his first state habeas proceeding. Kinney testified that during the first state
habeas proceeding, he focused on Engesser’s trial counsel’s failure to have
Engesser testify, his failure to make a proper objection when Trooper Fox
testified that he believed Engesser was lying when he interviewed him, his
failure to object when the prosecutor referenced Trooper Fox’s testimony that
Engesser lied during his closing arguments, and his failure to call witnesses
who could testify to Finley’s driving habits. Id. at 7-8. Kinney also testified
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that he was surprised when Eckholm’s name came up during Engesser’s first
state habeas hearing. Id. at 9.
Eckholm testified that on July 30, 2000, his truck quit on Interstate 90
by the Tilford weigh station. Id. at 28. His friend, Fowler,2 came to pick him
up and parked her van in front of his truck on the shoulder of the interstate.
While he was getting tools out of the back of his truck, Eckholm heard tires
squeal and looked up. Id. at 28-29. He saw a car come by him sideways and
spin backgrounds. Id. Eckholm testified, “that’s when I looked right at both
the people in the car. I saw the woman driving. I saw her frantically steering
the car.” Id. Eckholm also testified that he remembers seeing a woman’s
hands and bracelets. Id. at 47. The Corvette then hit a minivan with its back
end and a man was ejected from the Corvette. Id. at 29. The Corvette then
went into the median and the minivan went into the ditch. Id. Eckholm
walked over to the Corvette and saw the woman trapped underneath the car.
Id. Eckholm determined that she was dead. Id. at 33. He did not see the man
until he was walking back to his truck. Id. at 29. Engesser was covered in
blood and his head and back were bleeding. Id. at 34. Eckholm then waited to
talk to the police. Id. Eckholm gave a written statement to a police officer, but
the police officer did not write that the woman was driving. Id. at 35. Eckholm

2

During Eckholm’s testimony, he referred to Charlotte Fowler as
Charlotte Delaney, her maiden name and name at the time of the accident. See
Second State Habeas, 06-578, Transcript at 55.
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testified that even though it was not in his statement, he is sure he referred to
the driver as “her or she or the woman.” Id. at 37.
Eckholm later contacted Tim Rensch, Engesser’s trial attorney, after he
read a newspaper article about the case. Id. Eckholm was also seeking
representation for a DUI charge. Id. at 38. During the phone call, Eckholm
told Rensch that a woman was driving the vehicle. Id. at 39. Rensch did not
contact Eckholm again; Eckholm called him again a year or so later. Id. Then
Rensch told him “that this guy was kind of a bad guy anyways and had been
in some trouble, and they kind of wanted to put him away anyways.” Id. at
38. After reading another newspaper article about Engesser, Eckholm
contacted Heather Lammers Bogard, who was representing Engesser in a
subsequent habeas action. Id. at 41.
The next witness called was Jennifer Utter, who had served as the
Meade County State’s Attorney in 2000. Id. at 53. Utter testified that she did
not interview either Eckholm or Fowler in connection with the case. Id. Utter
helped prepare the case for indictment, but she left office before it was
presented to a grand jury. Id. at 54.
Fowler testified that she witnessed the crash. Id. at 56. At the time of
the accident, Fowler was sitting in her van on the shoulder of Interstate 90 by
the Tilford exit. Id. at 57. Her van was pointed east and parked directly in
front of Eckholm’s broken down vehicle. Id. Fowler testified that she was
sitting in the van and suddenly a car veered into view, out of control. Id. at
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58. Fowler thought the car was going to hit her van, so she clenched the
steering wheel and braced herself for the impact. Id. As the car hit the
MacPherson’s minivan, she saw a man’s leg and boot as a man flew through
the air after the impact. Id. at 59. After the dust settled, Fowler ran to the
man. Id. at 60. He was lying face down, and it looked like he could not
breathe. Id. Fowler testified that Engesser was lying about three car lengths
ahead of the Corvette in the median. Id. at 61. Fowler also testified that she
did not give a written statement to the police because “she was shaking so
bad” that she “really couldn’t hold a pen to write.” Id. at 63. The police officer
wrote a statement and she signed it. Id. Fowler testified that law enforcement
did not contact her again. Id. at 64.
Trooper Ed Fox, who was one of the main witnesses for the prosecution
during Engesser’s trial, also testified during the habeas hearing. Fox admitted
that at the time of the crash, he only had three years’ experience with the
South Dakota Highway Patrol. Id. at 69. All three of the other officers who
responded to the crash had more experience than he did. Id. Trooper Fox
disputed Eckholm’s and Fowler’s contentions that he did not follow up with
either of them after the accident. Id. at 75. Trooper Fox testified that,
according to his notes, he called each of the witnesses to follow up. Id. at 76.
Engesser testified as well. He testified that he did not know Eckholm
and that the first time he heard his name was from his attorney, Heather
Lammers Bogard, who was appointed to represent him on his federal habeas
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appeal to the Eighth Circuit Court of Appeals. Id. at 81. Nor did he know or
hear about Fowler until Bogard told him about her. Id. His prior attorneys,
Tim Rensch and Matthew Kinney, never discussed Eckholm as a witness with
him. Id. at 82.
The next witness was Tim Rensch, who represented Engesser during
his trial. Rensch testified that he first knew Eckholm was a potential witness
when he received the first packet of discovery materials from the prosecution.
Id. at 86. Neither Rensch nor his investigators spoke to Eckholm before the
trial, even though he was listed as an eyewitness in the discovery materials.
Id. at 87. Nor did Rensch or his investigators contact Fowler, although Rensch
was aware of her name throughout the case. Id. at 89-90. Rensch further
testified that when Eckholm contacted him, he was concerned that the
information he provided would be more consistent with a description of
Engesser than Finley, because Eckholm described the driver as having
“lighter blondish hair.” Id. at 96-97.
After Eckholm and Fowler testified at the state habeas hearing, Judge
Randall Macy found that their testimony was consistent with the physical
evidence after the accident, i.e., that the passenger window was shattered,
Engesser was ejected from the vehicle into the median, and Finley was located
inside the Corvette. See Attachment 1, Second State Habeas, 06-578,
Findings of Fact and Conclusions of Law, at 4, ¶ 13. Judge Macy also found
that “the habeas testimony of Eckholm and Fowler directly contradicts the
15

evidence presented by the State at trial.” Id. at 5, ¶ 19. Moreover, the South
Dakota Highway Patrol never marked the location of Engesser’s body in
relation to the scene of the accident. Id. at 5, ¶ 20. Nor did the South Dakota
Highway Patrol photograph the position of Finley’s body within the Corvette at
the scene of the accident. Id. at 6, ¶ 21. Judge Macy also observed that “the
only individual at the jury trial to testify that Engesser was the driver was
Trooper Fox, who at the time of the accident had less than three years
experience with the South Dakota Highway Patrol, was the least experienced
trooper on the scene, and was not certified to complete accident
reconstructions.” Id. at 6, ¶ 24. Judge Macy found that both Eckholm and
Fowler were “credible witnesses without identifiable bias[es].” Id. at 7, ¶¶ 30,
31. Judge Macy also concluded that “the strength of the evidence presented
by the prosecution at the jury trial was weak[.]” Id. at 9, ¶ 9. Judge Macy
granted Engesser’s petition for a writ of habeas corpus, finding that both
Engesser’s first habeas counsel Matthew Kinney and his trial counsel Tim
Rensch rendered ineffective assistance of counsel when they failed to discover
and call Eckholm and Fowler as witnesses.
After Judge Macy granted his second habeas petition, Engesser’s
attorney on the petition moved to reopen the evidence to have two witnesses
who had recently come forward testify on Engesser’s behalf. Greg Smeenk
was subpoenaed and testified on Engesser’s behalf; the other witness, Todd
Anderson, was unable to testify at the hearing. See Transcript, Motions
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Hearing, Second State Habeas, 06-578, at 3. Smeenk testified that he was
returning from a rodeo in Rapid City with his daughters when he saw what he
thought was smoke by the weigh station. Id. at 5. When he got to the weigh
station, there was a Corvette upside down in the median. Id. Smeenk pulled
over, got out, and ran to the Corvette. Id. He saw a man lying back “quite a
ways” and a lady attending to him. Id. Smeenk estimated that the man was
30 or 35 yards from the Corvette. Id. at 7. The Corvette was upside down and
Smeenk was unable to see inside because it was too crushed. Id. at 5. The
passenger door was into the ground so he could not open it. Id. Smeenk
circled the Corvette, trying to figure out how to get inside. Id. at 6. Both the
sheet metal on the driver’s side door and the door latch were gone, so he
started “fiddling with the mechanism that opens the door.” Id. Eventually,
Smeenk managed to pry the door open. Id. He crawled inside the Corvette and
took the pulse of the woman inside. Id. After he realized nothing could be
done for her, he left without talking to anyone because he did not want his
daughters to see the accident site. Id. A few months prior to his testimony,
Smeenk read an article about the accident in the Rapid City Journal and
thought he should come forward. Id. at 8. He spoke to the Butte County
Sheriff, who put him in touch with the state’s attorney. Id.
After hearing Smeenk’s testimony, Judge Macy denied Engesser’s
motion to reopen the evidence. Id. at 13-14. Judge Macy found that neither
law enforcement nor Engesser’s trial attorney could have discovered that
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Smeenk was a potential witness. Id. Judge Macy also noted that Smeenk’s
testimony was consistent with Eckholm’s and Fowler’s testimony. Id.
IV.

The Federal Evidentiary Hearing
This court held an evidentiary hearing on Engesser’s second federal

petition on June 30, 2011. Respondent objected to the holding of the
evidentiary hearing and argued that Engesser did not meet the standard for
holding an evidentiary hearing set forth at 28 U.S.C. § 2254(e)(2). Specifically,
respondent argued that Engesser failed to show that the “factual predicate for
his claim could not previously have been discovered through the exercise of
due diligence” and that the facts underlying his claim were not “sufficient to
establish by clear and convincing evidence that but for constitutional error,
no reasonable factfinder would have found [Engesser] guilty of the underlying
offense.” See Docket 68, Transcript of Federal Evidentiary Hearing at 4-6.
Respondent also argued that the court should not consider the testimony of
Eckholm, Fowler, and Smeenk because they had previously testified in state
court. Id. at 6. Finally, respondent asserted that the court was also precluded
from considering Shawn Boyle’s testimony because the court had addressed
Boyle in Engesser’s first federal habeas petition, where this court considered
“whether his testimony should have been admitted, or whether his statements
should have been admitted . . . via Attorney Finch.” Id. Respondent conceded
that the claim was not raised as a constitutional claim in Engesser’s first
federal petition, but respondent asserted that this court nonetheless had
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addressed the claim in the first petition as an alternative holding. Id. at 7.
This court reserved ruling on respondent’s objections until after the hearing.3
The first witness called was Eckholm. Eckholm testified that he was
pulled over on the shoulder of Interstate 90 by the Tilford weigh station
because his truck had broken down. Id. at 10-11. Eckholm heard screeching
tires and a red Corvette skidded by him at a high speed and hit a minivan. Id.
at 12. He saw a woman steering the red Corvette and a man bracing himself
on the windshield post. Id. at 13. Eckholm believes the driver was a woman
because he saw jewelry sparkle, hair blowing, and “frosted type” hair. Id. at
13-14. Eckholm also saw the passenger be ejected out of the top of the
Corvette when the Corvette hit the minivan. Id. at 15. Eckholm walked over to
the Corvette and determined that the woman was dead. Id. He also saw the
man in the median, approximately 25 to 30 yards from the Corvette. Id. at 17.
When Eckholm spoke to a state trooper about the accident, he remembers
using “she” and “her” to describe the driver. Id. at 20. At the time, Eckholm
did not think there would be any question as to who was driving the Corvette.
Id. at 21.

3

The standard for granting an evidentiary hearing in a § 2254 petition
for habeas corpus mirrors the AEDPA standard for successive petitions.
Because Engesser satisfies that standard, he has also made the requisite
showing for an evidentiary hearing in federal court. Whether the court may
consider each individual witness’s testimony is discussed infra Parts I and II.
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Later, after reading something in the newspaper, and seeking
representation on a DUI charge, Eckholm called Engesser’s trial attorney, Tim
Rensch, and told Rensch that he saw the accident. Id. at 21. Rensch told
Eckholm he would need him. Id. Eckholm heard nothing further from Rensch.
Id. at 22. When Eckholm called Rensch back, he “acted like he didn’t care”
and said that Engesser was a “vegetable” and “kind of a bad guy.” Id. Several
years later, in 2006, Eckholm read a newspaper article about the case and
contacted Engesser’s new attorney, Heather Lammers Bogard. Id. at 23.
Eckholm was deposed about the accident and subsequently testified in the
second state court habeas action. Id.
Fowler was the second witness Engesser called during the federal
evidentiary hearing. Fowler was with Eckholm at the side of Interstate 90
near Tilford Station because his truck had broken down. Id. at 57. While she
sat inside her van, Fowler saw the Corvette zooming towards them in the
driver’s side mirror. Id. at 57. Fowler thought the Corvette was going to hit
her van and Eckholm (who was outside of the van), and she screamed. Id.
Fowler heard a boom on impact as the Corvette struck a minivan, and she
saw a man’s leg as a man flew through the air. Id. at 60. After the dust
settled, Fowler ran to the median where the man lay and wiped dirt out of his
mouth so he could breathe. Id. at 60. Fowler estimated that he was lying
approximately 120 feet, or 17 car lengths, away from the Corvette. Id. at 61.

20

After the accident, Fowler realized she and Eckholm had seen the
Corvette earlier that day in Sturgis. Id. at 58. At that time, a woman, who
Fowler described as “a little blonde with highlights” was driving the vehicle.
Id. When asked to elaborate on the woman’s hairstyle, Fowler described it as
not quite shoulder length, with a mixture of light and dark highlights, and
stated that it looked like it had been back combed to give it volume. Id. at 63.4
After the accident, Fowler talked to a state trooper, and she assumed that the
woman (Finley) was the driver, but the trooper did not write it down when she
referred to the driver as female. Id. at 62. Although she does not remember
the phone call, Fowler conceded that if Trooper Fox’s notes indicated that he
followed up with her after the accident, he probably did. Id. at 76. Other than
the follow-up phone call, Fowler was not contacted about this case until the
2007 state habeas proceeding. Id.
Smeenk was driving home from a rodeo in Rapid City with his
daughters when he came upon the accident. Id. at 79. Smeenk saw smoke by
the weigh station and a minivan in the median, so he pulled over and went to
the Corvette. Id. at 80. The Corvette was upside down in the median and
“crunched down,” making it difficult to see inside. Id. Smeenk saw a lady
attending to a man “back a ways” from the Corvette. Id. at 80-81. Smeenk
estimated they were 30 yards from the car. Id. at 83. He walked around the

4

Fowler currently runs a beauty salon in Union, Texas. Docket 68,
Transcript of Evidentiary Hearing, at 55.
21

Corvette and noticed that the passenger side was completely crunched in. Id.
at 82. Although the sheet metal was gone on the driver’s side door, Smeenk
managed to get the door open on that side. Id. He reached in and took Finley’s
pulse. Id. After concluding she was dead and there was nothing he could do,
Smeenk left because he wanted to get his children away from the accident
scene. Id. at 82. Years later, Smeenk read about Engesser’s case in the Rapid
City Journal. Id. at 83. Smeenk called the Butte County Sheriff, who was a
friend of his, and the sheriff helped Smeenk contact the Meade County State’s
Attorney in 2007. Id. at 83. Smeenk testified before Judge Macy during a
motions hearing held on October 29, 2007, in the second state habeas
proceeding. Id. at 84.
Boyle was working as security at the Full Throttle Saloon in Sturgis,
South Dakota, on the day of the accident. Id. at 95. Boyle was acquainted
with Finley and described her as having brown hair with highlights. Id. at 9394. Boyle talked to Finley and Engesser for around 10-15 minutes the day of
the accident. Id. at 95-96. Both Finley and Engesser were drinking beers, but
neither appeared to be under the influence. Id. at 97. Around 6:30 or 7 p.m.,
Boyle saw the two leave. Id. at 96. Finley got into the driver’s seat of her red
Corvette and the two left. Id. at 97-98. Boyle testified that the Full Throttle
Saloon was about 8-10 miles from the interstate and that traffic that day
would have been heavy due to the upcoming Sturgis Motorcycle Rally. Id. at
108.
22

The 2011 federal evidentiary hearing was the first time Boyle testified in
court about the accident. Around the time of the accident, Boyle had legal
troubles of his own. Id. at 98-99. After being involved in a car accident
himself, Boyle was facing a potential fourth DUI charge so he decided to leave
South Dakota. Id. Boyle went to Florida in December of 2000. Id. at 99. Boyle
eventually came back to South Dakota to face the charges against him, and
he pleaded guilty to failure to appear and failure to report an accident. Id. at
103. Boyle served two weeks in jail before he was released on bond and
eventually sentenced to two years of probation. Id. After leaving South Dakota
in 2000, the first time Boyle was contacted about the accident was
approximately three weeks before the federal evidentiary hearing when an
investigator working for Engesser’s attorney contacted him. Id. at 105.
Syverson testified that he saw the Corvette immediately prior to the
accident. Id. at 111. The Corvette entered Interstate 90 at the on-ramp at mile
marker 32 heading east. Id. Syverson was driving his vehicle on Interstate 90
heading east toward Rapid City with his wife and daughter in the car. Id. The
Corvette was next to Syverson’s vehicle trying to merge onto Interstate 90. Id.
The on-ramp in question ran parallel to the interstate for a quarter to a third
of a mile; thus the Corvette on the on-ramp was parallel to Syverson’s car on
Interstate 90 for almost a third of a mile. Id. at 112. Before the on-ramp was
redone several years ago, it was much longer than a typical on-ramp. Id. at
125-36. Syverson noticed the red Corvette and looked over at the driver. Id. at
23

112. He observed that the driver had feminine features and a feminine
hairstyle. Id. Syverson described the driver’s hair as “poofy” or as looking like
she had used a curling iron on it, not long, and medium brown. Id. at 113. He
also testified that the driver was “smaller in stature.” Id. at 114. The Corvette
was going approximately the same speed as Syverson’s car for the majority of
the distance of the on-ramp until the last hundred yards or so, when it sped
up “to a very high speed” and shot ahead of his car. Id. Syverson paid
attention to the vehicle and the driver because he needed to determine
whether to move over, yield to the red Corvette, or speed up. Id.
Approximately four minutes later, Syverson came upon the Corvette upside
down in the median. Id. Syverson stopped his car and his wife went to help
the people in the minivan in the ditch. Id. Syverson stayed with his daughter
and when his wife returned, they left without talking to law enforcement
because they had not witnessed the accident. Id. at 112. When shown a
photograph of Finley taken around the time of the accident, Syverson testified
that the driver had similar hair and features. Id. at 115. When shown a
photograph of Engesser taken during his hospitalization after the accident,
Syverson stated “in no way was that the driver” and that it “couldn’t have
been [him] unless he was wearing a wig.” Id. at 116. Syverson also testified
that from his view of the profile of the driver, the driver did not have any facial
hair. Id. at 127. When Syverson saw a photograph of Engesser, who had facial

24

hair at the time, “that convinced [him] even more that he wasn’t driving
because there was no facial hair.” Id.
Syverson was first contacted approximately one month before the
federal evidentiary hearing. Id. at 117. Syverson does not know Engesser. Id.
at 126. He was contacted because the accident was discussed at his work
place, Rapid City Chevrolet. Id. at 127. The accident came up four or five
years ago when the employees at Rapid City Chevrolet had to identify the
owner of a Chevy SSR, which is a Corvette pickup or sports-type vehicle, by
its VIN number after it was totaled in a vehicular accident. Id. at 128. While
the employees were discussing other sports-type vehicle accidents, Syverson
mentioned that he had seen the red Corvette accident a few years earlier on
Interstate 90, and his co-worker, Rusty Engesser, mentioned that his cousin
was in that accident. Id. at 127. Rusty Engesser worked at Rapid City
Chevrolet for around two years, and Syverson did not socialize with him
outside of work. Id.
The final witness to testify during the federal evidentiary hearing was
Phyllis Gillies. Gillies had known Finley since 1992, when they met through
mutual friends. Id. at 132. She and Finley met for coffee several times a week.
Id. Gillies described Finley as petite, around 5'4" to 5'5" tall, and
conscientious about her appearance. Id. at 133, 138. She described Finley’s
hair style as medium length, permed, and reddish brown in color with no

25

gray. Id. at 134. Gillies also testified that Finley loved her red Corvette and
liked to speed. Id. at 137.
DISCUSSION
Engesser and respondent dispute the standard applicable to his claim.
Respondent argues Engesser’s claim should be analyzed under the AEDPA
standard for successive petitions. Engesser contends that the rule set forth in
Schlup v. Delo, 513 U.S. 298 (1995), is the appropriate standard. Both are
“gateway” standards, which, if met, would permit the court to consider
Engesser’s procedurally defaulted claim of ineffective assistance of counsel on
the merits. Engesser’s ineffective assistance of counsel claim is predicated on
his trial counsel’s failure to investigate, interview, and subsequently call at
trial eyewitnesses Eckholm and Fowler. Engesser contends that the testimony
of eyewitnesses Eckholm, Fowler, and Syverson, coupled with the testimony
of Smeenk, Boyle, and Gillies, demonstrates his actual innocence.
The Eighth Circuit Court of Appeals has not reached the issue of which
standard governs a successive federal habeas petition that asserts an actual
innocence “gateway” claim. Other courts have observed that “[t]here is a
question whether such a claim is governed by the Schlup standard itself, or by
the AEDPA conditions for filing a second or successive application, 28 U.S.C.
§§ 2244(b)(2)(B)(i) and (ii).” Cooper v. Brown, 510 F.3d 870, 876 (9th Cir. 2007)
(finding petitioner failed to meet either standard). Because the appropriate
standard is an open question in the Eighth Circuit, the court will analyze
26

Engesser’s claim under both the AEDPA standard for successive petitions and
the Schlup standard.
I.

The AEDPA Standard for Successive Petitions
The Eighth Circuit Court of Appeals authorized Engesser to file a

successive federal petition after it found he had made a prima facie showing
that he satisfied the AEDPA conditions for filing a successive petition. See
Docket 5-1, Authorization; 28 U.S.C. § 2244(b)(4). But this finding is not
binding on the district court, nor should it be accorded any persuasive weight.
Rather, it is “simply a sufficient showing of possible merit to warrant a fuller
exploration by the district court” that gets the petitioner through one of two
procedural gates he must pass through before the merits of his claim are
considered. Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997)
(Posner, J.). See also Jordan v. Sec’y, Dep’t of Corr., 485 F.3d 1351, 1358 (11th
Cir. 2007); Goldblum v. Klem, 510 F.3d 204, 219 (3d Cir. 2007); In re Lott, 366
F.3d 431, 432-33 (6th Cir. 2004); In re Johnson, 322 F.3d 881, 883 (5th Cir.
2003); Bell v. United States, 296 F.3d 127, 128 (2d Cir. 2002); Reyes- Requena
v. United States, 243 F.3d 893, 898-99 (5th Cir. 2001); Thompson v. Calderon,
151 F.3d 918, 925 (9th Cir. 1998); Rodriguez v. Superintendent, Bay State Corr.
Ctr., 139 F.3d 270, 273 (1st Cir. 1998), overruled on other grounds by Bousley
v. United States, 523 U.S. 614 (1998). Thus, the threshold issue is whether
Engesser has satisfied the standard for filing a successive petition.

27

Under the AEDPA, the district court must dismiss a successive petition
unless the “factual predicate of the claim could not have been discovered
previously through the exercise of due diligence” and the facts “establish by
clear and convincing evidence, that but for the constitutional error, no
reasonable factfinder would have found the applicant guilty of the underlying
offense.” 28 U.S.C. §§ 2244(b)(2)(B)(i)-(ii); 2244(b)(4).5 The hurdle that this
standard imposes has been equated to a showing of “a high probability of
actual innocence.” Gonzalez v. Crosby, 545 U.S. 524, 530 (2005). The standard
for successive petitions is more stringent than the Schlup standard. See
Cooper v. Woodford, 358 F.3d 1117, 1119 (9th Cir. 2004). Engesser was
authorized to present a new claim of ineffective assistance of counsel because
there is “new evidence of Engesser’s factual innocence that could not have
been discovered earlier.” Docket 5-1, Authorization to File Successive Petition.
Eckholm, Fowler, Smeenk, Boyle, Syverson, and Gillies testified during
the federal hearing. The testimony of Eckholm, Fowler, and Smeenk does not
qualify as new evidence because they have previously testified in state court.
Whether Boyle’s testimony constitutes new evidence under § 2244(b)(2)(B)(i) is
a more difficult question. Engesser and his attorney were aware of Boyle’s
testimony at the time of trial. Boyle told Engesser’s civil attorney, Dennis

5

Engesser does not contend that his claim relies on a new rule of
constitutional law made retroactive by the United States Supreme Court. Thus,
his claim is analyzed under §§ 2244(b)(2)(B)(i)-(ii).
28

Finch, that he saw Finley and Engesser leave the bar together earlier in the
evening and that Finley was driving her own car. But at the time of trial, Boyle
had fled South Dakota to avoid prosecution. While he was unavailable as a
witness, the evidence was known to Engesser and his attorney at the time of
trial.6 Thus, Boyle’s testimony does not qualify as new evidence under
§ 2244(b)(2)(B)(i). Gillies testified that she has known Finley since 1992. Gillies
is not a newly discovered witness under § 2244 because her testimony could
have been discovered through the exercise of due diligence.
But Engesser did present one witness during the federal hearing who
qualifies as new evidence under § 2244. Syverson testified that he saw a
woman driving the Corvette just minutes before the fatal crash. Syverson had
not been contacted about this case until a few weeks prior to the federal
evidentiary hearing. After stopping at the scene of the accident, Syverson did
not linger, but rather left without speaking to law enforcement officers. His
name was not listed as a witness to the crash or the events preceding it. Thus,
neither Engesser nor his attorney could have discovered that Syverson saw a
woman driving the Corvette immediately before the accident. In fact,
Engesser’s attorney hired two investigators in an effort to find people who may

6

Engesser sought to have Boyle’s statements admitted through Dennis
Finch. The trial court refused to admit this hearsay evidence and the South
Dakota Supreme Court affirmed on direct appeal. This court also rejected
Engesser’s claim that the trial court should have admitted Boyle’s statements
through Finch in Engesser’s first federal habeas petition. See 04-5065, Docket
25, Order Adopting Report and Recommendation.
29

have seen the driver of the Corvette. See Transcript, Second State Habeas, 06578, at 102, 111. Because Syverson did not speak to law enforcement after the
accident and there was no record of him seeing the accident, he could not
have been discovered through the exercise of due diligence. Thus, Syverson’s
testimony demonstrates that the factual predicate of Engesser’s claim could
not previously have been discovered. Consequently, Engesser has met the first
requirement for presenting a successive petition.
Next, Engesser must demonstrate that the facts “establish by clear and
convincing evidence, that but for the constitutional error, no reasonable
factfinder would have found [him] guilty of the underlying offense.” 28 U.S.C.
§ 2244(b)(2)(B)(ii). In other words, Engesser must demonstrate that if his trial
attorney had been effective, no reasonable juror would have convicted him.
Specifically, Engesser claims that his trial counsel was ineffective for failing to
investigate and call eyewitnesses Fowler and Eckholm as witnesses at trial.
During Engesser’s trial, Trooper Fox was the only witness to testify that
Engesser was the driver of the Corvette. This assertion was not refuted by
Engesser’s attorney, who appeared to focus on the fact that the Corvette was
stored outdoors, permitting any bodily fluids inside the Corvette to deteriorate.
If Engesser’s attorney had interviewed Eckholm and Fowler, and called them
as witnesses, their testimony would have directly contradicted Trooper Fox’s
assertion that Engesser was the driver of the Corvette. The identity of the
driver was the only issue at Engesser’s trial. If a factfinder were presented with
30

Eckholm’s and Fowler’s eyewitness testimony, no reasonable factfinder would
have found Engesser guilty of the underlying offense. The only state court
(Judge Macy) to have considered Eckholm’s and Fowler’s testimony and to
weigh the testimony against the evidence presented at Engesser’s trial found
that their testimony would have changed the outcome of his trial. Moreover,
Judge Macy reached this conclusion without the benefit of Syverson’s
eyewitness testimony, which demonstrates even more clearly that “but for the
constitutional error, no reasonable factfinder would have found [Engesser]
guilty of the underlying offense.” 28 U.S.C. § 2244. Thus, Engesser has met
the standard to present a successive petition under the AEDPA, and his
ineffective assistance of counsel claim will be considered on the merits.
II.

Schlup Gateway Claim
The proper standard for an actual innocence claim in a successive

petition is unclear in the Eighth Circuit. Thus, this court analyzes Engesser’s
claim under the Schlup standard as well as the AEDPA standard for successive
petitions. The Schlup standard excuses procedural default where a petitioner
has presented credible evidence of actual innocence.
Generally, claims forfeited under state law cannot be the basis for
federal habeas relief unless the petitioner can demonstrate cause and
prejudice for the default. See generally Murray v. Carrier, 477 U.S. 478, 485
(1986); Wainwright v. Sykes, 433 U.S. 72, 87-88 (1977). But this bar is not
unlimited. “In an effort to balance the societal interests in finality, comity, and
31

conservation of scarce judicial resources with the individual interest in justice
that arises in the extraordinary case, the Court has recognized a miscarriage
of justice exception.” House v. Bell, 547 U.S. 518, 536 (2006) (internal citation
omitted). In Schlup v. Delo, the Court set forth a rule for applying this
principle. “Schlup provides that a habeas petitioner may obtain review of
otherwise barred claims if he produces reliable new evidence not available at
trial establishing that it is more likely than not that no reasonable juror would
have convicted him in light of the new evidence.” Amrine v. Bowersox, 238 F.3d
1023, 1028 (8th Cir. 2001) (Amrine II). Put another way, Engesser must
demonstrate “that more likely than not any reasonable juror would have
reasonable doubt.” House, 547 U.S. at 538. This standard is demanding and
permits review only in the extraordinary case. Id.
The Eighth Circuit Court of Appeals has interpreted the new evidence
requirement to require not only evidence unavailable at trial, but “new reliable
evidence which was not available at trial through the exercise of due
diligence.” Kidd v. Norman, No. 10-1375, slip op. at 11, 2011 WL 3795098, at
*7 (8th Cir. Aug. 29, 2011); Amrine II, 238 F.3d at 1029. Engesser presented
the testimony of Eckholm, Fowler, Smeenk, Boyle, Syverson, and Gillies at his
federal evidentiary hearing. Thus, the court must consider whether this
evidence meets the standard.
Both Eckholm’s and Fowler’s testimony was available at trial; both were
disclosed in the discovery materials as witnesses to the crash. Here the
32

anomaly facing Engesser is that his actual innocence gateway claim is
predicated upon his trial counsel’s initial failure to exercise due diligence when
he failed to interview either Eckholm or Fowler. But this evidence does not
meet the Amrine II standard. Therefore, it cannot be considered in determining
whether it is more likely than not that no reasonable juror would have
convicted Engesser in light of the new evidence.
Smeenk’s testimony was not available at trial; Smeenk did not come
forward until 2007. Thus, his testimony would not have been available to
Engesser at trial through the exercise of due diligence.
Engesser knew about Boyle’s testimony prior to his trial. Boyle did not
testify because he was a fugitive. Although his testimony may not have been
available through the exercise of due diligence because he fled the jurisdiction,
Boyle does not qualify as new evidence.
Syverson’s testimony was not available at trial through the exercise of
due diligence. The fact that he witnessed Finley driving the Corvette a few
minutes prior to the crash was not discovered until several weeks before the
federal evidentiary hearing. Although he stopped at the scene of the accident,
Syverson did not speak to law enforcement. Consequently, he could not have
been discovered through the exercise of due diligence.
Gillies testified that she had known Finley since 1992. Given this fact,
the court cannot conclude that her testimony is new evidence which was not
available at trial through the exercise of due diligence. Thus, witnesses
33

Smeenk and Syverson qualify as new reliable evidence of Engesser’s factual
innocence.
Engesser also introduced several exhibits at his hearing. Petitioner’s
exhibit 2 was a headshot of Dorothy Finley taken when she ran for Meade
County Treasurer, which was around the time of the accident. It was used to
illustrate Finley’s hairstyle. The photograph shows that Finley had a short, full
hair style. Her hair is medium brown, with blond highlights in the front.
Petitioner’s exhibit 3 was a map of the area of the accident, which was used
solely for demonstrative purposes. Petitioner’s exhibit 4 was a photograph of
Engesser in the hospital, taken shortly after the accident. The photograph
shows that Engesser had short, dark, frizzy hair and a mustache. This was
shown to Syverson and he was asked if the driver of the Corvette had facial
hair. This exhibit also contradicts Rensch’s testimony in the state habeas
proceeding that Eckholm’s description of the driver (blondish hair that blew in
the wind) was more consistent with Engesser than Finley. Petitioner’s exhibit 5
was Trooper Fox’s initial report, which stated that Finley was the driver. At the
federal evidentiary hearing, Engesser’s attorney explained that he introduced
the initial report to show that there may have been an assumption that Finley
was the driver, and as a result, the trooper’s questions to the individuals who
witnessed the accident did not focus on the identity of the driver. Petitioner’s
exhibit 6 was a series of photographs of Finley’s body at the accident scene.
Engesser’s attorney noted that the photographs show what appears to be a
34

bracelet on her wrist, which would be consistent with Eckholm’s testimony
that he saw jewelry on the driver.
Respondent introduced one exhibit—a memo that Trooper Fox wrote
indicating that he followed up with the witnesses to the accident. With the
exception of the map and the headshot of Finley, all of these exhibits are
contained in the state court record. The map was offered solely for
demonstrative purposes and the headshot of Finley would have been available
to Engesser’s attorney at trial. Thus, these exhibits are not “new evidence” that
could not have been discovered through the exercise of due diligence.
Another feature of the Schlup standard is the weighing of the evidence.
“Schlup makes plain that the habeas court must consider “ ‘all the evidence,’ ”
old and new, incriminating and exculpatory, without regard to whether it
would necessarily be admitted under ‘rules of admissibility that would govern
at trial.’ ” House, 547 U.S. at 538 (quoting Schlup, 513 U.S. at 327-28 (quoting
Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 28
U. Chi. L. Rev. 142, 160 (1970))). More specifically, “[i]n deciding whether a
petitioner has made the necessary showing of innocence, a federal court must
make its own determination of whether the ‘probative force of the newly
presented evidence in connection with the evidence of guilt adduced at trial’ is
sufficient to warrant consideration of the otherwise barred claims.” Amrine v.
Bowersox, 128 F.3d 1222, 1227 (8th Cir. 1997) (Amrine I) (quoting Schlup, 513
U.S. at 330-32).
35

Smeenk’s and Syverson’s testimony demonstrate that it is more likely
than not that a reasonable juror would have had reasonable doubt. The sole
question at Engesser’s trial was whether he was driving Finley’s Corvette at
the time of the crash. Judge Macy found that the evidence against Engesser
was weak. The only witness to testify that Engesser was the driver was Trooper
Fox, who by his own admission, was inexperienced and the least senior officer
on the scene of the accident. Engesser’s position in the median relative to the
Corvette was a key piece of evidence in the state’s theory of the case. Smeenk’s
testimony places Engesser significantly further from the Corvette and
establishes that he, rather than Engesser, opened the driver’s side door. More
importantly, Syverson testified that he had an opportunity to observe the
driver of the Corvette for nearly a third of a mile while the Corvette was
parallel to him on the on-ramp near Sturgis. Syverson testified that the driver
had feminine features and feminine hair. He also noticed that the driver was
small in stature. Finley was a petite woman; Engesser is 5'9" tall. These
observations were made no more than four minutes before the accident. This
eyewitness evidence directly contradicts the weak evidence presented by the
state. When this new evidence is weighed against the evidence presented at
trial, reasonable doubt remains. Thus, Engesser has demonstrated “that more
likely than not any reasonable juror would have reasonable doubt.” House,
547 U.S. at 538.

36

If Eckholm’s and Fowler’s testimony is also considered, the probative
value of the evidence the state presented at trial dwindles even further. While
this evidence does not qualify as “new evidence” under Amrine II, House
indicates that the court is to broadly review the available evidence in
determining whether a petitioner has demonstrated that more likely than not a
reasonable juror would have reasonable doubt. House, 547 U.S. at 538.
Eckholm testified that he saw jewelry and a woman’s hands on the driver
when the Corvette narrowly missed hitting him. He also testified that he saw
the passenger be ejected from the Corvette when it struck the minivan. Fowler
saw a man’s leg and boot when the man was ejected though the air. The
accident happened right in front of them, as the Corvette nearly struck
Eckholm, who was on foot, and Fowler’s van. Both also testified that
Engesser’s position in the median was significantly farther from the Corvette
than the evidence presented at trial. When Judge Macy considered their
testimony, he found their testimony to be credible and consistent with the
physical evidence. Fowler also testified that she saw a woman driving the
Corvette earlier in the day. But even if this court did not consider Eckholm’s
and Fowler’s testimony, Engesser has made the requisite showing. After
reviewing the evidence available at trial and the new evidence, the court
concludes that “it is more likely than not that no reasonable juror would have
convicted him in light of the new evidence.” Amrine II, 238 F.3d at 1028.

37

III.

Engesser’s Ineffective Assistance of Counsel Claim
Because Engesser has satisfied both the AEDPA conditions for filing a

successive petition and the Schlup gateway standard, the court considers his
procedurally defaulted claims on the merits. Engesser’s petition is unique
because a lower state court considered his ineffective assistance of counsel
claim on the merits before its decision was vacated by the South Dakota
Supreme Court.7 Thus, this court directed the parties to brief whether the
court should “look through” the South Dakota Supreme Court’s decision
reversing the grant of habeas corpus to the state circuit court’s decision
because the South Dakota Supreme Court’s decision appears to find that
Engesser’s claim was procedurally defaulted under state law. See Worthington
v. Roper, 631 F.3d 487, 487 (8th Cir. 2011) (“[W]hen a state appellate court
affirms a lower court decision without reasoning, we ‘look through’ the silent
opinion and apply AEDPA review to the ‘last reasoned decision’ of the state
courts.”) (internal citations omitted). Respondent asserts that this court may
not defer to the state circuit court’s decision, but rather must defer to the
South Dakota Supreme Court’s opinion reversing the grant of habeas corpus.

7

Because at least one state court has considered Engesser’s procedurally
defaulted claim on the merits, this court will apply the AEDPA standard of
review to his claim rather than evaluating it under Strickland as would be the
case for a claim that had never been addressed by a state court. See, e.g.,
House v. Bell, No. 96-883, 2007 WL 456844 (E.D. Tenn. Dec. 20, 2007)
(evaluating a procedurally defaulted claim under Strickland after the United
States Supreme Court found the petitioner satisfied the gateway standard of
Schlup).
38

In support of its position, respondent cites Harrington v. Richter, 131 S. Ct.
770, 784 (2011) and asserts that Worthington no longer applies. Specifically,
respondent asserts that “determining whether a state court’s decision resulted
from an unreasonable legal or factual conclusion does not require that there
be an opinion from the state court explaining the state court’s reasoning.”
Harrington, 131 S. Ct. at 784. But the state court decision that was the subject
of Harrington was a summary denial, not a reasoned opinion, as is the case
here. Moreover, the Court in Harrington clarified the general rule it announced,
explaining that “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.” 131 S. Ct. at 784-785 (emphasis
added).
The South Dakota Supreme Court’s opinion is explicit in noting that
Engesser failed to make the threshold showing required to present a
successive petition in state court. The court states:
Before addressing the issues raised on appeal, we reiterate a
petitioner’s burden of proof when seeking a second or subsequent
habeas based on ineffective assistance of counsel claims. . . . We
said, ‘ineffective assistance of counsel at a prior habeas
proceeding is not alone enough for relief in a later habeas action.
Any new effort must eventually be directed to error in the original
trial or plea of guilty.’ Even though the challenge must eventually
show error in the underlying trial or plea, the habeas applicant
must first show that the prior habeas counsel was ineffective.
Perhaps, this step has not been emphasized enough in our cases.”
39

Engesser, 759 N.W.2d at 312 (quoting Jackson v. Weber, 637 N.W.2d 19, 23
(S.D. 2001)) (emphasis added).
It appears that the South Dakota Supreme Court relied on state law
procedural principles to find that Engesser’s underlying ineffective assistance of
trial counsel claim was procedurally defaulted. The court continued, stating
“[c]onsequently, for Engesser to prevail in this second habeas challenge, he
must show that his first habeas counsel was ineffective. We do not believe he
has made that showing.” Id. at 313. Thus, the South Dakota Supreme Court
did not adjudicate Engesser’s ineffective assistance of trial counsel claim on
the merits, and this court will apply AEDPA review to the state circuit court’s
decision because it is the last reasoned decision of the state courts on the
claim. See Worthington, 631 F.3d at 497; Mark v. Ault, 498 F.3d 775, 783 (8th
Cir. 2007) (“Because the Iowa Supreme Court denied Mark review, we apply
the AEDPA standard to the decision of the Iowa Court of Appeals because it is
the ‘last reasoned decision’ of the state courts.”) (citing Ylst v. Nunnemaker,
501 U.S. 797, 803-04 (1991)).
Federal relief is barred under § 2254 unless “the state court decision
was “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States” or unless the state court decision “was based on an unreasonable
determination of the facts in light of the evidence presented. . . .” 28 U.S.C.

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§ 2254(d). Under the AEDPA, it is not enough to find that the state court
applied clearly established federal law erroneously or incorrectly—the
application must also be unreasonable. Williams v. Taylor, 529 U.S. 362, 411
(2000) (an unreasonable application of federal law is different from an
incorrect one). Accordingly, a federal court applies a deferential standard of
review when assessing a state court’s disposition of a state habeas petition.
See Barnett v. Roper, 541 F.3d 804, 814 (8th Cir. 2008). A state court’s
determination of the facts is also entitled to respect. “In a proceeding
instituted by an applicant for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court, a determination of a factual issue
made by a state court shall be presumed to be correct[.]” 28 U.S.C. § 2254(e)(1)
(emphasis added).
Judge Macy found that the testimony presented at trial was that there
were no eyewitnesses to the accident and that consequently “the habeas
testimony of Eckholm and Fowler directly contradicts the evidence presented
by the State at trial.” Attachment 1 at 5, ¶ 19. Moreover, the South Dakota
Highway Patrol never marked the location of Engesser’s body in relation to the
scene of the accident. Id. at 5, ¶ 20. Judge Macy also observed that “the only
individual at the jury trial to testify that Engesser was the driver was Trooper
Fox, who at the time of the accident had less than three years experience with
the South Dakota Highway Patrol, was the least experienced trooper on the

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scene, and was not certified to complete accident reconstructions.” Id. at 6, ¶
24. Judge Macy also found that both Eckholm and Fowler were “credible
witnesses without identifiable bias[es].” Id. at 7, ¶¶ 30, 31. Judge Macy
declined to consider Smeenk’s testimony, but he did find that it was consistent
with Eckholm and Fowler’s testimony. See Transcript, Motions Hearing,
Second State Habeas, 06-578, at 13-14.
After these findings of fact, Judge Macy concluded that Engesser
received ineffective assistance of trial counsel. He reasoned that “an attorney
preparing a case must make a reasonable investigation in preparing a case or
make a reasonable decision not to conduct a particular investigation.”
Attachment 1 at 8, ¶ 3 (citing Foster v. Lockhart, 9 F.3d 722, 726 (8th Cir.
1993)). Thus, trial counsel Rensch’s decision not to interview Eckholm and
Fowler, which he categorized as “two eyewitnesses disclosed early on in
discovery” was unreasonable. Judge Macy also found that Eckholm and
Fowler “will likely be considered credible and not subject to substantial
impeachment at trial.” Id. at 9, ¶ 7. He also found that the “strength of the
evidence presented by the prosecution at the jury trial was weak” and that
“the eyewitness testimony of Eckholm and Fowler would have likely altered the
outcome of the original jury trial.” Id. at 9, ¶ 9. Accordingly, Judge Macy found
that “Engesser was not afforded effective assistance of counsel at trial” and

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that this “deprived [him] of his basic constitutional right to a fair trial.” Id. at
10, ¶ 11 (citing Jackson, 637 N.W.2d at 19).
The state court’s evaluation of Engesser’s ineffective assistance claim
was not an unreasonable application of federal law. Under Strickland, an
attorney’s choices are not entitled to deference unless they are informed by
adequate investigation into the facts. An attorney’s “strategic choices made
after less than complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the limitations on
investigation.” Strickland v. Washington, 466 U.S. 668, 690-91 (1984).
“Strickland simply does not require . . . deference to decisions that are
uninformed by an adequate investigation into the controlling facts and law.”
Anderson v. Johnson, 338 F.3d 382, 392 (5th Cir. 2003). Nor is it reasonable to
rely exclusively on the investigative file of the government. Thomas v. Lockhart,
738 F.2d 304, 308 (8th Cir. 1984). The state trial court correctly concluded
that Engesser’s trial attorney’s failure to interview two eyewitnesses, who were
disclosed to him in discovery, was professionally unreasonable. Judge Macy’s
conclusion that Engesser was prejudiced by this failure is also reasonable.
After reviewing Eckholm’s and Fowler’s testimony and comparing their
testimony to the evidence presented at trial, Judge Macy concluded that
Engesser was prejudiced by his attorney’s failure to interview and call the two
individuals as witnesses. Judge Macy reviewed the evidence presented by the

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prosecution and concluded it was weak. Therefore, his conclusion that “but for
counsel’s unprofessional errors, the result of the proceeding would have been
different” is not an unreasonable application of federal law. Strickland, 466
U.S. at 694. Accordingly, it is
ORDERED that Engesser’s petition for a writ of habeas corpus
(Docket 1) is granted pursuant to 28 U.S.C. § 2254.
IT IS FURTHER ORDERED that respondent’s motion to dismiss
(Docket 25) is denied.
IT IS FURTHER ORDERED that respondent’s objection to the evidentiary
hearing is overruled.
Dated September 30, 2011.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE

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