CONSIDERED ON MOTION ON JUNE 27, 2019
MOTION FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT
CODINGTON COUNTY, SOUTH DAKOTA. THE HONORABLE KENT SHELTON
LARSON Jeff Larson Law, LLP Sioux Falls, South Dakota
Attorneys for petitioner.
RAVNSBORG Attorney General PATRICK J. MCCANN Codington County
State's Attorney Watertown, South Dakota Attorneys for
GILBERTSON, CHIEF JUSTICE.
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.
and Procedural History
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
At several points during trial, Asmussen attempted to raise a
nonsensical defense under the Uniform Commercial
Code. 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.
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. The motion was granted at the end of
2018. 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.
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):
[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