APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT MEADE COUNTY, SOUTH DAKOTA HONORABLE RANDALL L. MACY Judge.
The opinion of the court was delivered by: Meierhenry, Justice
[¶1.] The State appeals the circuit court's grant of Oakley B. Engesser's petition for a writ of habeas corpus. This is Engesser's second petition for a writ of habeas corpus in state court. A jury convicted Engesser of vehicular homicide and two counts of vehicular battery. He was sentenced to twenty-five years in the South Dakota State Penitentiary. His conviction was affirmed on appeal in State v. Engesser, 2003 SD 47, 661 NW2d 739. His first petition for writ of habeas corpus was denied in circuit court. He then filed for habeas relief in federal court that was also denied, Engesser v. Dooley, 2005 WL 1278473 (DSD 2005), and affirmed on appeal. 457 F3d 731 (8thCir 2006). In this second (state) petition for habeas corpus, Engesser claimed that he was deprived of effective assistance of counsel in his first habeas petition and at trial. The circuit court agreed and granted his petition. The State appeals. We reverse.
[¶2.] Engesser's underlying conviction arose from a July 30, 2000, automobile accident. Engesser and Dorothy Finley were both in Finley's red Corvette when it struck another vehicle from behind while traveling at a speed in excess of one-hundred miles per hour on interstate I-90. Engesser was thrown from the vehicle, and Finley was trapped inside. Finley died at the scene, Engesser suffered a severe head injury, and two of the passengers of the other vehicle were also injured. Blood tests showed that both Engesser and Finley had been drinking. The main issue at trial was whether Finley or Engesser had been driving when the accident occurred. As a result of Engesser's injuries, he could not recall the accident or who was driving.
[¶3.] Most of the State's proof that Engesser was driving derived from the opinion testimony of Highway Patrol Trooper Fox. Trooper Fox concluded that Engesser was driving based upon the Corvette's seat adjustments, his reconstruction of the accident, and the positioning and location of Finley's and Engesser's bodies after the accident. The names and statements from eye witnesses, including witnesses at the accident scene, were provided to the defense as part of discovery. Trooper Fox indicated on his reports that none of the witnesses could identify who was driving the Corvette.
[¶4.] Two witnesses, Eric Eckholm and Charlotte (Delaney) Fowler, were originally questioned at the scene. Eckholm's handwritten statement on the South Dakota Highway Patrol Voluntary Statement Form read as follows:
I was broke down on the east lane, when I heard screeching tires and saw a red corvette hit a small white van backwards, because of [excessive] speed. The corvette lost control in the east bound fast lane and turned over to the slow lane and lost control, hitting the van in the rear. When the corvette lost control it [slid] to the right, spinning around hitting the van in the rear, with its rear.
Eckholm's handwritten statement did not indicate that he saw who was driving the Corvette. Fowler expressly told Trooper Fox that she did not see who was driving. She only saw the aftermath of the collision. In his report, Trooper Fox listed the names of the witnesses he had interviewed and noted, "[no] one able to identify driver." Neither the State nor the defense called Eckholm and Fowler to testify at trial.
[¶5.] Engesser's trial counsel, Timothy Rensch, testified that he knew Eckholm and Fowler were at the scene and that he had read Trooper Fox's report on what the two had observed. Neither Rensch nor the private investigators assisting him with the trial followed up with further interviews of Eckholm or Fowler. Rensch testified that he first became aware that Eckholm might be able to identify the driver as a woman when Eckholm telephoned him a couple of years after Engesser had been convicted, while the case was on appeal. Rensch recalled receiving a telephone call from Eckholm in the fall of 2002 or spring of 2003. Eckholm thought he called Rensch in 2003 when he read about the case in a newspaper. Rensch testified that he passed along the information from Eckholm to the State's Attorney and to Engesser's first habeas lawyer, Matt Kinney. However, Rensch said he warned Kinney to "watch out when you interview [Eckholm], it could be problematic because he's indicated to me a description [of a driver with blond hair] that was more consistent with Bernie (Engesser) than it was with Dorothy (Finley)."*fn1 Kinney disputed that Rensch had told him about Eckholm. He testified that he was not aware that Eckholm claimed to have seen a woman driving at the time of the accident until the State asked Rensch about Eckholm in the habeas hearing. Kinney testified that he was surprised when Eckholm's name came up during the habeas hearing.
[¶6.] The testimony of Eckholm and Fowler became the centerpiece of Engesser's second habeas hearing. Eckholm testified that on the day of the accident, as he was parked on the shoulder of the highway, he heard tires squealing and looked up to see Finley's Corvette coming toward him. Eckholm testified that he saw the Corvette go by and then spin around. He claimed he saw a woman in the driver's seat frantically steering the car and a male passenger "hanging on." Eckholm described the woman driver as having blonde hair that was long "enough to fly in the wind" and "kind of puffy." He then saw the back end of the Corvette hit a minivan, the male passenger fly out of the passenger side of the Corvette as it flipped, and the Corvette crash into the median ditch. He walked to the Corvette and saw Finley underneath the overturned car. Eckholm's description placed Engesser's body further from the vehicle than Trooper Fox claimed at trial.
[¶7.] Fowler testified that she saw a man thrown from the Corvette after the collision. She ran to where he lay in the median and then went to check on the people in the van. Fowler also testified that she had noticed the red Corvette with a woman driver, earlier in the day.
[¶8.] The circuit court determined that Engesser had shown that his prior habeas counsel and trial counsel were ineffective because they had failed to identify and investigate Eckholm and Fowler and that he was prejudicedbecause their testimony would likely have altered the outcome of the original jury trial. Since Engesser had shown prejudice, the circuit court granted habeas corpus relief. The State appeals.
[¶9.] 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. In 2001, we held that the right to habeas "counsel mandated by SDCL 21-27-4 makes it 'implicit that this means competent counsel.'" Jackson v. Weber, 2001 SD 30, ¶18, 637 NW2d 19, 23 (quoting Lozadav. Warden, 223 Conn 834, 839, 613 A2d 818, 822 (1992) (additional citations omitted)). Thus, we enabled a defendant to challenge the effectiveness of habeas counsel in a subsequent habeas application. Counsel's effectiveness is measured by the standard set forth in Strickland v. Washington. 466 US 668, 104 SCt 2052, 80 LEd2d 674 (1984). 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." Jackson, 2001 SD 30, ¶17, 637 NW2d at 23. 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 prior cases.
[¶10.] Consequently, 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. Most of the evidence was directed at trial counsel's omissions, not at habeas counsel's omissions. The circuit court found that habeas counsel was ineffective conceivably due to his failure to interview the witnesses and/or ask for a continuance when the names surfaced at the habeas hearing. "This Court, however, may substitute its own judgment for that of the circuit court as to whether defense ...