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Hughbanks v. Dooley

Supreme Court of South Dakota

October 26, 2016

KEVIN L. HUGHBANKS, Petitioner and Appellant,
v.
BOB DOOLEY, Warden, South Dakota State Penitentiary, Respondent and Appellee.

          CONSIDERED ON BRIEFS ON AUGUST 18, 2016

         APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT LINCOLN COUNTY, SOUTH DAKOTA HONORABLE STUART L. TIEDE Retired Judge

          DAVID A. STUART of Peterson, Stuart, Rumpca & Rasmussen, Prof. LLC Beresford, South Dakota Attorneys for petitioner and appellant.

          MARTY J. JACKLEY Attorney General PAUL S. SWEDLUND Assistant Attorney General Pierre, South Dakota Attorneys for respondent and appellee.

          KERN, Justice

         [¶1.] Kevin Hughbanks appealed a summary judgment denying his petition for habeas corpus relief from his convictions for two counts of possession of child pornography and as a habitual offender. Hughbanks's attorney filed his brief as a "Korth brief" alleging a lack of arguably meritorious issues for appeal. See State v. Korth, 2002 S.D. 101, 650 N.W.2d 528. Upon consideration of the case, we identified two arguably meritorious issues for appeal and directed supplemental briefing on those issues. See id. ¶ 16 n.6, 650 N.W.2d at 535 n.6. After completion of supplemental briefing, we again considered the case. We reverse and remand.

         Facts and Procedural History

         Conviction

         [¶2.] On March 20, 2007, Hughbanks pleaded guilty in Lincoln County to two counts of possession of child pornography and admitted the Part II Information alleging he was a habitual offender. He was sentenced on June 19, 2007, to ten years in the penitentiary on the first count and to a consecutive ten years on the second count with the latter sentence suspended. A written judgment was filed on June 25, 2007. Hughbanks did not directly appeal his conviction and it became final on July 26, 2007.

         Habeas in Circuit Court

         [¶3.] Hughbanks filed his only petition for a writ of habeas corpus on April 2, 2014, nearly seven years after his conviction became final. He alleged multiple claims of ineffective assistance of counsel and a Miranda violation. The court appointed counsel and issued a provisional writ of habeas corpus requiring a return. The State filed its return on April 24, 2014, raising a defense under the two-year statute of limitations for habeas corpus actions set forth in SDCL 21-27-3.3.[1] This statute, effective July 1, 2012, replaced a prior statute that generally permitted a habeas action to be "filed at any time[.]" See 2012 S.D. Sess. Laws ch. 118, §§ 1 & 3. On May 21, the State filed a motion for summary judgment along with a statement of undisputed facts in support of its statute of limitations defense. The return, motion, and statement asserted that the petition was time barred under SDCL 21-27-3.3(1) because Hughbanks filed his petition more than two years after his conviction was final in 2007. Further the State argued that none of the exceptions provided for by subdivisions (2) through (4) of SDCL 21-27-3.3 applied so as to permit Hughbanks's petition. Hughbanks countered with his own statement of undisputed material facts asserting that he did not discover the factual predicates for his claims until December 2013 and, therefore, his petition was timely under SDCL 21-27-3.3(4).

         [¶4.] A hearing was held on July 8, 2014. Hughbanks testified[2] that he lacked access to legal counsel and legal materials, which deprived him of the ability to appreciate the legal significance of the predicate facts for his habeas claims until December 2013. Therefore, Hughbanks argued that his habeas petition was timely under SDCL 21-27-3.3(4). The habeas court rejected Hughbanks's claims in a memorandum decision filed on August 26, 2014, and an amended decision filed October 30, 2014. The court reasoned that all of the factual predicates for Hughbanks's claims were known to him no later than 2010. Further, the court found that Hughbanks had adequate access to counsel and legal materials to appreciate the legal significance of those facts before that time. Accordingly, the court filed an amended judgment and order on November 4, 2014, granting the State's motion for summary judgment, quashing the provisional writ of habeas corpus and dismissing Hughbanks's petition with prejudice.

         Initial Habeas Appeal

         [¶5.] On January 8, 2015, the habeas court granted Hughbanks's motion for a certificate of probable cause to appeal the denial of his claim under SDCL 21-27-3.3(4). Hughbanks filed a notice of appeal to this Court. His counsel later filed Hughbanks's brief as a Korth brief claiming a lack of arguably meritorious issues for appeal. Consistent with Korth, counsel then briefed the issues requested by Hughbanks, including the issue on which the certificate of probable cause was granted. But counsel also raised a new claim, arguing that it was error to retroactively apply the two-year statute of limitations set forth in SDCL 21-27-3.3, which took effect July 1, 2012, to a habeas petition arising from Hughbanks's 2007 conviction.

         [¶6.] In its response, the State agreed with certain aspects of Hughbanks's retroactivity argument. In view of the State's position, this Court directed supplemental briefing on the following issues:

1) Whether the habeas court erred in retroactively applying SDCL 21-27-3.3 to Hughbanks's action. See, e.g., Eagleman v. Diocese of Rapid City, 2015 S.D. 22, 862 N.W.2d 839.
2) Whether in retroactively applying SDCL 21-27-3.3 to Hughbanks's action the habeas court had authority to delay commencement of the two-year limitations period until ...

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