Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Asmussen v. Young

Supreme Court of South Dakota

August 21, 2019

DAVID JOHN ASMUSSEN, Petitioner,
v.
DARIN YOUNG, Warden, South Dakota State Penitentiary, Respondent.

          CONSIDERED ON MOTION ON JUNE 27, 2019

          ON MOTION FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT CODINGTON COUNTY, SOUTH DAKOTA. THE HONORABLE KENT SHELTON Judge

          JEFF LARSON Jeff Larson Law, LLP Sioux Falls, South Dakota Attorneys for petitioner.

          JASON RAVNSBORG Attorney General PATRICK J. MCCANN Codington County State's Attorney Watertown, South Dakota Attorneys for respondent.

          GILBERTSON, CHIEF JUSTICE.

         [¶1.] David Asmussen has filed a motion for a certificate of probable cause to appeal the denial of habeas corpus relief from his kidnapping convictions. Because his habeas claims are clearly procedurally defaulted, we deny the motion.

         Facts and Procedural History

         [¶2.] At the conclusion of a jury trial in Codington County in late 2006, Asmussen was convicted of two counts of first-degree kidnapping in connection with the 2001 disappearance of his girlfriend in Watertown. Asmussen waived counsel and exercised his right of self-representation during trial following an advisement by the trial court as to the dangers and disadvantages of self-representation. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); State v. Van Sickle, 411 N.W.2d 665, 666-67 (S.D. 1987). Asmussen also underwent a pre-trial psychiatric examination to establish his ability to understand the dangers and disadvantages of self-representation and a pre-trial competency hearing during which a psychiatric report indicating that he was competent was accepted into evidence.[1]

         [¶3.] At several points during trial, Asmussen attempted to raise a nonsensical defense under the Uniform Commercial Code.[2] His attempts were rejected by the trial court. Following his conviction, Asmussen was sentenced in December 2006 to concurrent life terms for the two kidnapping counts. The judgment was filed on January 10, 2007.

         [¶4.] Asmussen did not directly appeal his convictions. In January 2015, he filed a pro se petition for a writ of habeas corpus along with motions for the appointment of counsel and a waiver of fees. Two attorneys were appointed successively to represent him, both of whom eventually withdrew for conflicts of interest. Asmussen's current counsel filed an amended application for a writ in September 2017. The amended application alleged violations of Asmussen's rights to counsel and of due process, as well as a claim that his sentence was cruel and unusual. The State moved to dismiss because Asmussen failed to file his application within the two-year statute of limitations for habeas corpus actions in SDCL 21-27-3.3.[3] The motion was granted at the end of 2018.[4] Asmussen's motion for a certificate of probable cause for appeal from the habeas court was denied, and Asmussen moved for a certificate from this Court.

         Analysis and Decision

         [¶5.] Issuance of a certificate of probable cause generally requires "a substantial showing of the denial of a constitutional right." Ashley v. Young, 2014 S.D. 66, ¶ 8, 854 N.W.2d 347, 350 (quoting Lange v. Weber, 1999 S.D. 138, ¶ 9, 602 N.W.2d 273, 275). However, the standard is modified when a habeas claim is denied on procedural grounds. As explained in Khaimov v. Crist, 297 F.3d 783, 786 (8th Cir. 2002):[5]

[W]hen a [habeas] claim is denied on procedural grounds, our reading of [Slack v. McDaniel, 529 U.S. 473, 484-85, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000)] is that: 1) if the claim is clearly procedurally defaulted, the certificate should not be issued; 2) even if the procedural default is not clear, if there is no merit to the substantive constitutional claims, the certificate should not be issued; but, 3) if the procedural default is not clear and the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.