United States District Court, D. South Dakota, Northern Division
For Richard Litschewski, Petitioner: Thomas J. Cogley, LEAD ATTORNEY, Ronayne & Cogley PC, Aberdeen, SD.
For Robert Dooley, Warden, Marty Jackley, Attorney General of the State of South Dakota, Respondents: Craig M. Eichstadt, LEAD ATTORNEY, Attorney General of South Dakota, Pierre, SD.
CHARLES B. KORNMANN, UNITED STATES DISTRICT JUDGE.
Petitioner was convicted in 1997 for Count I, third degree rape which occurred in 1991, Count II, first degree rape which occurred in 1989, and Count III, sexual contact with a child which occurred in 1986. He was originally sentenced to 7 1/2 years on Count I, 12 1/2 years on Count II, and 7 1/2 years on Count III, all counts to run consecutively, for a total sentence of 27 1/2 years. Pursuant to SDCL 23A-27-4, a separate judgment was entered for each conviction.
Petitioner completed the first 7 1/2 years of his sentence in 2004. In 2010, he sought state habeas review of his sentence on Count II on the basis that, when his sentence was imposed, a South Dakota statute allowed consecutive sentences only for subsequent offenses. SDCL 22-6-6.1 (1983). Because Count II occurred first in time, the 12 1/2 year sentence could not legally run consecutive to the 7 1/2 year sentence. Although his habeas petition was denied by the Circuit Court, the South Dakota Supreme Court held that " the circuit court lacked the authority to order Litschewski's sentence for Count II to run consecutive to Count I." State v. Litschewski, 2011 SD 88, 807 N.W.2d 230, 235 (SD 2011). The South Dakota Supreme Court granted the petition and remanded for resentencing.
Upon resentencing on June 14, 2012, petitioner argued that the word " consecutive" in the Count II judgment was illegal and, therefore, the Circuit Court should simply amend the judgment to remove the consecutive nature of the sentence on Count II. The State argued that the Circuit Court should instead re-order the counts, leaving the sentences the same. The Circuit Court agreed with the State and imposed a sentence of 12 1/2 years on Count II, 7 1/2 years on Count I consecutive to Count II, and 7 1/2 years on Count III, consecutive to the other two sentences, totaling 27 1/2 years imprisonment. Separate judgments were entered as to each count.
Petitioner appealed the 2013 judgments on the basis, inter alia, that resentencing the petitioner on Count I violated the Double Jeopardy Clause. The South Dakota Supreme Court affirmed without a decision on April 29, 2013 (Docket No. 26531).
It could be questioned whether the Double Jeopardy Clause claim was adjudicated on the merits in state court so that it is entitled to deference. " 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." Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 784-85, 178 L.Ed.2d 624 (2011). This presumption is proper in the present case because Litschewski clearly presented the claim and has offered no argument to overcome the presumption. I find that the state court did adjudicate the Double Jeopardy Clause claim on the merits.
Petitioner filed the instant petition pursuant to 28 U.S.C. § 2254 challenging the 2012 sentences. Counsel was appointed and an amended petition (Doc. 26) was filed on behalf of petitioner, claiming the 2012 sentence on Count I violated the Double Jeopardy Clause.
There is no claim that petitioner has not exhausted his state remedies.
Pursuant to 28 U.S.C. § 2254(d), petitioner's application cannot be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless the state court's decision was " contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the United States Supreme Court," or was " based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." " [D]etermining 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 v. Richter, 562 U.S. 86, 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011).
Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court . . . It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable . . . As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings . . . Section 2254(d) reflects the view that ...