United States District Court, D. South Dakota, Southern Division
MEMORANDUM OPINION AND ORDER DENYING APPLICATION FOR
WRIT OF HABEAS CORPUS
Lawrence L. Piersol District Court Judge
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. 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.
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.
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).
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.
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
5. Whether there was sufficient evidence to convict Graham of
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.
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).
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
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 [.]"
Graham's habeas claims were denied by the state court. A
certificate of probable cause was not issued. (Doc. 31-1.)
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.
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. 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. This Court ruled Graham's habeas
claims were not procedurally defaulted because there was no
adequate state law ground barring federal habeas review.
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.
STANDARD OF REVIEW
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
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.
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).
"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)).
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
Claim 1: State Court Jurisdiction
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.
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."
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.
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
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
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))
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.
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. The Court now will turn to the merits.
Merits of Graham's Dual ...