APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA HONORABLE JEFF W. DAVIS
[¶1.] Stanley Reed (Reed) filed a petition for writ of habeas corpus including an application for court-appointed counsel. The habeas court found Reed's petition "frivolous" and therefore not made in "good faith" as required by SDCL 21-27-4. Reed's petition and request for appointed counsel were denied. We adopt an objective definition of "good faith," one that includes a determination that the issues raised in the petition are not frivolous, in interpreting SDCL 21-27-4. The habeas court is affirmed.
[¶2.] Reed pleaded guilty to felony distribution of a controlled substance and third-degree rape. Reed filed a petition for a writ of habeas corpus accompanied by a request for court-appointed counsel. After his petition was dismissed by the habeas court, Reed moved this Court for a certificate of probable cause (CPC) in order to appeal dismissal of his petition. This Court granted the motion for CPC to address the definition of "good faith" as used in SDCL 21-27-4.
[¶3.] SDCL 21-27-4 provides in part:
If a person has been committed, detained, imprisoned or restrained of his liberty, under any color or pretense whatever, civil or criminal, and if upon application made in good faith to the court or judge thereof, having jurisdiction, for a writ of habeas corpus, it is satisfactorily shown that the person is without means to prosecute this proceeding, the court or judge shall appoint counsel for the indigent person pursuant to chapter 23A-40.
[¶4.] The habeas court interpreted the "good faith" requirement of this section to qualify the statutorily mandated appointment of habeas counsel such that counsel need only be appointed when the petition raises any issue that is not frivolous. As stated by the habeas court, "a petition which lists only frivolous, or meritless, grounds for habeas relief is not made in good faith and does not warrant the appointment of counsel."
[¶5.] This Court has not previously addressed the language of SDCL 21-27-4 conditioning appointment of counsel "upon application made in good faith." Some guidance is provided in SDCL 2-14-2. This section states in relevant part: Terms used throughout the code of laws enacted by § 2-16-13, mean: . . . "Good faith," an honest intention to abstain from taking any unconscientious advantage of another, even through the forms or technicalities of law, together with an absence of all information or belief of facts which would render the transaction unconscientious[.] Id.
But inclusion of "render the transaction unconscientious" suggests this definition is meant for use in a transactional context. [¶6.] Reed urges a subjective definition of "good faith." This Court has previously defined "good faith" in this manner. See, e.g., B.W. v. Meade County, 534 N.W.2d 595, 598 (S.D. 1995) ("Acting in good faith denotes performing honestly, with proper motive, even if negligently."). This Court has not, however, applied such a definition of "good faith" in the context of SDCL 21-27-4. [¶7.] Reed cites authority from other jurisdictions that comment on the importance of habeas counsel. While those cases articulate the value of habeas counsel, each of the jurisdictions cited allow habeas courts to refuse appointed counsel to petitioners who have filed frivolous petitions.*fn1
[¶8.] The habeas court borrowed the U.S. Supreme Court's interpretation of "good faith" used for determining whether to allow indigent defendants to appeal in forma pauperis. See Coppedge v. United States , 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). The statutory language interpreted by Coppedge reads: "An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." 28 U.S.C.A. 1915(a)(3). In this context, the U.S. Supreme Court rejected a subjective construction of "good faith." Coppedge, 369 U.S. at 444-45, 82 S.Ct. at 920-21. Instead, the Supreme Court adopted an objective standard for determining "good faith." ...