The opinion of the court was delivered by: Karen E. Schreier Chief Judge
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.
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 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, 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).*fn1
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.
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 332-33. 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.
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.
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.
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 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 cross-examination, 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.
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 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 ...