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Graham v. Young

United States District Court, D. South Dakota, Southern Division

October 26, 2016

JOHN GRAHAM, Petitioner,
DARIN YOUNG, Warden, Respondent.


          Lawrence L. Piersol District Court Judge

         Petitioner, John Graham, is an inmate at the South Dakota State Penitentiary. He filed a pro se application for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on September 17, 2013.[1] Respondent Darin Young has moved for summary judgment, asserting the state court correctly denied Graham's habeas claims. Respondent has submitted for the Court's review the relevant state court records and transcripts of the underlying state court criminal trial. For the following reasons, the writ will be denied.


         In February 1976, Anna Mae Aquash's remains were found in a remote area of the Badlands near Wanblee in South Dakota. In 2003, Graham, a Canadian citizen, was charged in federal court with premeditated murder of Aquash. In 2007, Graham was extradited to South Dakota from Canada. The federal murder charge was dismissed by this Court because the indictment failed to allege Graham's Indian status, and the Eighth Circuit affirmed. See United States v. Graham, 572 F.3d 954 (8th Cir. 2009). In 2009, Graham was indicted by a Pennington County grand jury on state charges of premeditated murder and felony murder. The underlying felony was alleged to be the kidnapping of Aquash.

         Prior to trial, the United States requested permission from Canada to try Graham on the state charges. The Consent to Waiver of Specialty, signed by the Canadian Minister of Justice on February 2, 2010, provides:

Consent to Waiver of Specialty Article 12(1)(iii) of the Treaty on Extradition between Canada and the United States of America
United States of America v. John Graham
Having regard to the request from the United States of America dated December 18, 2009, (Diplomatic Note No. 852) and to the provisions of sub-paragraph 12(1)(iii) of the Treaty on Extradition between Canada and the United States of America, I hereby consent to the detention, prosecution and, if he is convicted, punishment of John Graham with respect to the offences which are set forth in the Indictment, No. 09-3953, filed on September 9, 2009, in the Seventh Circuit Court, County of Pennington, namely:
Count 1: Murder while in the Commission of any felony namely kidnapping, in violation of South Dakota Codified Law 22-16-9 and 22-19-1; and
Count 3: Premeditated Murder, in violation of South Dakota Codified Law 22-16-4.

State v. Graham, 2012 S.D. 42, § 12, 815 N.W.2d 293, 299 n.6 (2012).

         On January 26, 2011, a jury convicted Graham of felony murder in violation of SDCL 22-16-9. He was acquitted of premeditated murder. Graham was sentenced to life in prison.

         Graham raised the following, issues on direct appeal to the South Dakota Supreme Court:

1. Whether the doctrine of specialty deprived the State of jurisdiction to try Graham on the state felony murder charge when he had been extradited to the United States on the federal charge of premeditated murder;
2. Whether the circuit court erred in allowing Looking Cloud's and Maloney's testimony restating Looking Cloud's 2002 telephonic statement to Maloney;
3. Whether the circuit court erred in allowing Yellow Wood's testimony that Aquash said that Peltier made a statement accusing Aquash of being an informant;
4. Whether the circuit court erred in allowing Ecoffey's testimony that Peltier, in the presence of Aquash, made a self-incriminatory statement admitting that he killed an FBI agent;
5. Whether there was sufficient evidence to convict Graham of felony murder;
6. Whether Graham's sentence of life imprisonment without parole was authorized by statute, and whether the sentence was cruel and unusual punishment under the Eighth Amendment.

         The South Dakota Supreme Court rejected these claims and affirmed Graham's conviction and sentence on May 30, 2012. State v. Graham, 815 N.W.2d 293 (S.D. 2012).

         On May 24, 2013, Graham petitioned for state habeas corpus relief. He raised the following grounds for relief:

1. The court lacked jurisdiction because Canada has no law comparable to felony murder;
2. The jury did not find Graham guilty of kidnapping because the jury instructions did not include every element of the offense;
3. Graham's indictment and jury instructions were duplicitous because they merged kidnapping and felony murder into a single count;
4. Graham's felony murder conviction is void because it is based on a statute that was repealed in 2005;
5. Graham did not receive a fair trial based in part on the alleged lack of evidence of his guilt and on counsel's alleged ineffective assistance for "failing to call any of the obvious witnesses or mention any of the well-known alternative theories of the murder [.]"

         All of Graham's habeas claims were denied by the state court. A certificate of probable cause was not issued. (Doc. 31-1.)

         Graham timely filed a pro se motion for certificate of probable cause with the South Dakota Supreme Court pursuant to 21-27-18.1. (Doc. 31-2). On September 9, 2013, the South Dakota Supreme Court issued an order dismissing the motion for certificate of probable cause "for failure to serve a copy of the motion upon the opposing party, this service being a prerequisite to the Court's jurisdiction to consider said motion pursuant to SDCL 21-27-18.1." (Doc. 31-6.)

         Graham timely filed this federal habeas petition. Respondent argued that the entire federal petition was procedurally defaulted because the South Dakota Supreme Court denied Graham's habeas claims on the independent and adequate ground that Graham failed to serve the motion for certificate of probable cause simultaneously with its filing as required by SDCL 21-27-18.1.[2] The Respondent did not cite one other case where the South Dakota Supreme Court had dismissed a timely filed motion for certificate of probable cause for lack of jurisdiction because the petition had not been served at the time of filing.[3] This Court ruled Graham's habeas claims were not procedurally defaulted because there was no adequate state law ground barring federal habeas review.

         The claims presented in Graham's pending writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 are the same as those raised in his state habeas, with one additional claim: that the Court should consider all of the errors in the aggregate and find that Graham's trial lawyer provided ineffective assistance of counsel.



         Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a habeas petitioner cannot obtain relief based on a claim adjudicated on the merits in state court unless the ' adjudication of the claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d). Under AEDPA, "clearly established Federal law" refers to the holdings, as opposed to the dicta, of the Supreme Court's decisions at the time of the relevant state court decision. Lockyer v. Andrade, 538 U.S. 63, 71 (2003). The Supreme Court has emphasized that Supreme Court decisions are the only ones that can form the basis justifying habeas relief; circuit court cases cannot. Id.; see also Lopez v. Smith, ___ U.S.___, 135 S.Ct. 1 (2014) (per curiam) ("We have emphasized, time and again, that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, prohibits the federal courts of appeals from relying on their own precedent to conclude that a particular constitutional principle is 'clearly established.'").

         A state court decision is "contrary to" Supreme Court precedent "if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases, " or "if the state court confronts a set of facts that are materially indistinguishable from a decision of th[e] Court and nevertheless arrives at a result different from [the Court's] precedent." Williams v. Taylor, - 529 U.S. 362, 405-06 (2000). A state court decision involves an unreasonable application of federal law "if the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case." Id. at 407.

         "In order for a federal court to find a state court's application of [Supreme Court] precedent 'unreasonable, ' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been 'objectively unreasonable.'" Id. at 520-21 (citation omitted); see also LaFrank v. Rowley, 340 F.3d 685, 689 (8th Cir. 2003) (under "unreasonable application" clause, federal habeas court may not issue writ simply because it concludes in its independent judgment that relevant state court decision applied clearly established law erroneously or incorrectly; rather, application must be objectively unreasonable). The habeas petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Visciotti, 537 U.S. 19, 24 (2002).

         The "contrary" and "unreasonable application" standards are "difficult to meet, " and "highly deferential" for evaluating state-court rulings, "which demands that state-court decisions be given the benefit of the doubt." Cullen v. Pinholster, 563 U.S.170, 181 (2011) (quoting Woodford, 537 U.S. at 24). These thresholds are "'difficult to meet, ' because the purpose of AEDPA is to ensure that federal habeas relief functions as a 'guard against extreme malfunctions in the state criminal justice systems, ' and not as ameans of error correction." Greene v. Fisher, ___ U.S. ___, 132 S.Ct. 38, 43 (2011) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)).

         Even where constitutional error is found in § 2254 proceedings, habeas petitioners are entitled to relief only if the federal court finds that the error "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). In reversing the Ninth Circuit's holding that a state court's decision denying relief to defendants was unreasonable, the Supreme Court recently explained:

There must be more than a "reasonable possibility" that the error was harmful. Brecht, supra, at637, 113 S.Ct. 1710 (internal quotation marks omitted). ThcBrecht standard reflects the view that a "State is not to be put to th[e] arduous task [of retrying a defendant] based on mere speculation that the defendant was prejudiced by trial error; the court must find that the defendant was actually prejudiced by the error." Calderon v. Coleman, 525 U.S. 141, 146, 119 S.Ct. 500, 142 L.Ed.2d 521 (1998) (per curiam ).

Davis v. Ayala, ___ U.S. ___, 135 S.Ct. 2187, 2198 (2015).

         II. CLAIMS

         A. Claim 1: State Court Jurisdiction

         Graham contends that the trial court lacked jurisdiction because Canada has no law comparable to felony murder. More specifically, Graham asserts that the state felony murder charge does not satisfy the "dual criminality" requirement of the United States-Canada Extradition Treaty, which generally requires that Graham's alleged criminal activity be a crime in both nations. Respondent counters that Graham lacks standing to challenge his extradition and that his argument is devoid of merit.

         On direct appeal to the South Dakota Supreme Court, Graham argued that the doctrine of specialty was violated by his extradition and, thus, the trial court lacked jurisdiction. The South Dakota Supreme Court rejected that claim. Graham specifically raised the dual criminality challenge in his state habeas action. In rejecting that claim, the post-conviction state court said: "The South Dakota Supreme Court found specifically that Canada explicitly consented to the prosecution of Graham on the Pennington County indictment charging felony murder and it therefore had jurisdiction to try to [sic] matter."

         1. Standing

         Respondent first argues that because Canada consented to Graham's prosecution for felony murder, Graham lacks standing to challenge his extradition as a violation of the treaty because the Canadian government consented to Graham's prosecution under the treaty. Graham asks this Court to follow United States v. Alvarez-Machain, 504 U.S. 655 (1992), in order to find that he has standing to challenge his extradition as violating the United States-Canada Extradition Treaty.

         In Alvarez-Machain, the defendant was abducted in Mexico and brought to the United States to face federal criminal charges. The defendant sought dismissal of the indictment, alleging that the extradition treaty between the United States and Mexico was violated by his forcible abduction and, accordingly, the court lacked jurisdiction over him. The Supreme Court disagreed and held that the existence of an extradition treaty does not preclude the United States from acquiring jurisdiction over a fugitive by other means, unless the treaty expressly provides otherwise. Examining the treaty, which was silent about the obligations of each country to not engage in forcible abductions, the Supreme Court concluded that the treaty did "not purport to specify the only way in which one country may gain custody of a national of the other country for the purposes of prosecution." Id. at 664. The extradition treaty only serves to "provide[ ] a mechanism which would not otherwise exist, requiring, under certain circumstances, the [signatory countries] to extradite individuals to the other country, and establishes procedures to be followed when the Treaty is invoked." Id. at 664-65. Accordingly, the Court concluded that because the abduction was not in violation of the treaty, the manner in which the defendant was brought before the court was irrelevant, and jurisdiction existed. See Id. at 662.

         Alvarez-Machain is distinguishable from Graham's case not only because it involved an abduction and not an extradition from the asylum country, but also because the asylum country did not consent to the defendant's prosecution in that case. Nevertheless, to the extent Graham relies on Alvarez-Machain to argue that he has standing to raise an objection to his extradition, this Court agrees. The Supreme Court in Alvarez-Machain questioned the Ninth Circuit's holding and the government's argument that an abducted individual could only raise the issue if the offended government had formally protested to their prosecution. The Supreme Court explained:

The Extradition Treaty has the force of law, and if, as respondent asserts, it is self-executing, it would appear that a court must enforce it on behalf of an individual regardless of the offensiveness of the practice of one nation to the other nation. In Rauscher, the Court noted that Great Britain had taken the position in other cases that the Webster-Ashburton Treaty included the doctrine of specialty, but no importance was attached to whether or not Great Britain had protested the prosecution of Rauscher for the crime of cruel and unusual punishment as opposed to murder.

Alvarez-Machain, 504 U.S. at 667. Furthermore, the Eighth Circuit has held that extradited individuals such as Graham "have standing to raise any obj ection that the surrendering country might have raised to their prosecution." United States v. Lomeli, 596 F.3d 496, 500 (8th Cir. 2010) (citing Leighnor v. Turner, 884 F.2d 385, 388 (8th Cir. 1989))[4]

         Respondent argues, however, that Canada's consent or agreement to Graham's trial for premeditated murder and felony murder under South Dakota law waived any challenges Graham could make to such prosecution under the extradition treaty. There is support for Respondent's position. For example, in United States v. Diwan, 864 F.2d 715 (11th Cir. 1989), the Eleventh Circuit held that the extradited individual could only raise objections to prosecutions that Great Britain, the asylum nation, might consider a breach of the applicable treaty. Therefore, notwithstanding the defendant's extradition solely on theft-related offenses, in light of Great Britain's express consent, the defendant also could be tried for conspiracy to persuade a minor into sexually explicit conduct even though she was not extradited for that offense. See Id. at 721. The Eleventh Circuit held that the defendant's rights under the treaty were derivative to those of the asylum country. Id. at 721. Because Great Britain's Secretary of State for the Home Office, who had the ultimate authority to decide whether a fugitive should be extradited, confirmed that Great Britain did not object to prosecution of the defendant on all. counts of the indictment, the Eleventh Circuit rejected the defendant's argument that the doctrines of specialty and dual criminality barred her prosecution on the non-theft offenses. Id. at 721 and n. 7.

         Although cases like Diwan from other circuits might support Respondent's argument, the Court is not aware of a case from the Eighth Circuit holding that consent by the asylum country ' waives the defendant's standing to assert a right under an extradition Treaty, and other circuits have held that the asylum country's consent does not waive the defendant's standing. See Ha Kung Wong, Note, The Extra in Extradition: The Impact of State v. Pang on Extraditee Standing and Implicit Waiver, 24 J. Legis 111(1998) (discussing cases). Thus, the Court concludes that Canada's consent did not waive Graham's standing to raise any objection that Canada might have raised to his prosecution, including the dual criminality challenge.[5] The Court now will turn to the merits.

         2. Merits of Graham's Dual ...

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