Considered on Briefs Nov. 4, 2013.
Kenneth M. Tschetter, Nicholson, Tschetter, Adams & Nicholson, Sioux Falls, South Dakota, Attorneys for petitioner and appellant.
Marty J. Jackley, Attorney General, Kelly Marnette, Assistant Attorney General, Pierre, South Dakota, Attorneys for respondent and appellee.
[¶ 1.] Michael Davis filed a petition for habeas relief more than seven and one half years after his conviction for possession of an unauthorized article by an inmate. The habeas court found that Davis had failed to rebut the presumption of prejudice to the State caused by Davis's failure to file his petition for habeas relief within five years pursuant to SDCL 21-27-3.2. We affirm.
FACTS AND PROCEDURAL BACKGROUND
[¶ 2.] Davis was a South Dakota State Penitentiary inmate serving a 15-year sentence stemming from a 1998 aggravated assault conviction. On November 14, 2001, while Davis was residing in the disciplinary segregation unit, penitentiary officials investigated an assault on Davis's cellmate. As a part of the investigation, officials seized Davis's clothing. Officials found a razor blade hidden in the hem of Davis's boxer shorts. Davis was permitted to use a disposable razor while incarcerated, but he was not permitted to remove the blade from the razor and conceal it.
[¶ 3.] Davis was charged by indictment on June 13, 2002, with possession of an unauthorized article by an inmate, in violation of SDCL 24-2-14(3) and second-degree rape, in violation of SDCL 22-22-1(2). In addition, a part two information was filed pursuant to SDCL 22-7-7. As a result of these charges, Davis faced a possibility of two life sentences in the penitentiary. Attorney Paul Pietz was appointed to represent Davis on these charges.
[¶ 4.] On June 24, 2002, Davis was arraigned on the charges and pleaded not guilty. Plea agreement negotiations began between the State and Davis. The parties entered into a plea agreement wherein Davis agreed to plead guilty to possession of an unauthorized article by an inmate. In exchange for his guilty plea to this charge, the State agreed to dismiss the second-degree rape charge and the part two information. The State agreed to limit the maximum possible penitentiary sentence to 15 years, to be served after Davis served the entirety of his assault sentence from 1998.
[¶ 5.] At a change of plea hearing on October 24, 2002, Davis was advised of his constitutional and statutory rights; the terms of the plea agreement; and the sentence. Davis pleaded guilty to possession of an unauthorized article by an inmate. Davis agreed to the factual basis as presented by the State.
[¶ 6.] On December 11, 2002, the circuit court sentenced Davis to 15 years in the penitentiary, with his sentence to run consecutively to his prior sentence for aggravated assault. A judgment of conviction and sentence was filed on December
26, 2002. The judgment of conviction and sentence and notice of the right to appeal were mailed to Pietz. Davis did not file a direct appeal with this Court.
[¶ 7.] Davis filed a petition for writ of habeas corpus on June 16, 2010, and the habeas court appointed new counsel for his habeas petition. In his petition, Davis alleged a number of constitutional violations, including ineffective assistance of trial counsel. Davis alleged that Pietz failed to preserve his right to appeal following his guilty plea and sentence, and that Pietz did not apprise him of potential appellate issues. In its return to the petition for writ of habeas corpus, the State requested dismissal of the petition based on prejudice caused by Davis's ...