BRILEY W. PIPER, Petitioner and Appellant,
DARRIN YOUNG, Warden of the South Dakota State Penitentiary, Respondent and Appellee.
OCTOBER 1, 2018
FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT
LAWRENCE COUNTY, SOUTH DAKOTA THE HONORABLE RANDALL L. MACY
KOLBECK Sioux Falls, South Dakota Attorney for petitioner and
J. JACKLEY Attorney General PAUL S. SWEDLUND MATTHEW W.
TEMPLAR Assistant Attorneys General Pierre, South Dakota
Attorneys for respondent and appellee.
Briley Piper pled guilty to five separate crimes, including
first-degree felony murder, and was originally sentenced to
death following a court sentencing. We affirmed his sentence
on direct review, but later granted habeas relief, vacated
the death sentence, and remanded the case for resentencing by
a jury. The jury also sentenced Piper to death, which we
affirmed in his second direct appeal. Piper now appeals the
circuit court's denial of his second application for writ
of habeas corpus, claiming his original guilty pleas were not
made voluntarily and intelligently. Piper also claims that
the resentencing court abused its discretion when it denied
his motion to introduce evidence of what he alleged were the
State's inconsistent previous arguments. Finally, Piper
argues he received ineffective assistance of counsel at his
initial change of plea hearing and at his jury resentencing.
In March of 2000, Chester Allan Poage was brutally beaten and
killed at a remote location in Lawrence County. His body was
found approximately one month later, and law enforcement
officers quickly identified Briley Piper, Elijah Page, and
Darrell Hoadley as suspects in the murder and a related
burglary and theft at Poage's home. The State charged the
three with first-degree murder, kidnapping, first-degree
robbery, first-degree burglary, and grand theft. The State
also filed a notice of its intent to seek the death penalty
for each of the three co-defendants. A more complete factual
summation is set forth in State v. Piper (Piper
I), 2006 S.D. 1, 709 N.W.2d 783, but here we confine
ourselves to the procedural progression of this case through
its successive stages of litigation.
Guilty Pleas and Court Sentencing
On January 3, 2001, Piper pled guilty to all five principal
charges. His guilty pleas came shortly before his
capital murder trial was scheduled to begin and after the
circuit court denied, in part, his motions to suppress
statements to law enforcement officers and to a former jail
cellmate. The pleas were not prompted by a plea agreement and
were unanticipated by the prosecutor and the circuit court,
who were expecting to discuss additional pretrial motions at
During what became his change of plea hearing, Piper's
attorneys opined that the text of SDCL 23A-27A-2 and SDCL
23A-27A-6 seemed to contemplate that the court would sentence
the defendant in a capital case following a guilty plea. The
issue was a novel one, though, and the court called a recess
to consider it further. At the heart of the inquiry, and a
recurring theme in all of Piper's post-plea litigation,
was whether the same forum (court or jury) had to decide both
the guilt and sentencing phases, or whether a defendant in a
capital case could have alternate forums at each
phase. When the January 3 hearing resumed, the
parties and the court did not discuss the topic further, but
the record supports the inference that the court, counsel,
and Piper all understood that Piper would continue with his
stated intention of pleading guilty and asking the court to
conduct his sentencing.
The court advised Piper of his constitutional rights,
including the separate right to have his sentence determined
by a jury. The court explained the effect of Piper's
waiver of a jury trial and the statutory maximum penalty for
each offense, telling Piper specifically that the punishment
for the murder conviction could include death by lethal
injection. Piper acknowledged the risks of his pleas and
waived his rights to a jury trial,  telling the court that he
was pleading guilty to take responsibility for his conduct.
After canvassing Piper further, the court determined that the
pleas were voluntary and intelligent and accepted them.
After three days of evidence, the court imposed a sentence of
death for the first-degree murder conviction, life
imprisonment for the kidnapping conviction, and consecutive
maximum sentences for the robbery, burglary, and grand theft
convictions. As to the murder sentence, the court found the
existence of three statutory aggravating factors, which
authorized the capital sentence. See SDCL 23A-27A-6.
In this regard, the court specifically found that Piper had
killed Poage "for the purpose of receiving money or any
other thing of monetary value[, ]" that the killing
"was outrageously or wantonly vile, horrible, or inhuman
in that it involved torture, depravity of mind, or an
aggravated battery to the victim[, ]" and that the
killing "was committed for the purpose of avoiding,
interfering with, or preventing a lawful arrest or custody in
a place of lawful confinement, of the defendant or
another[.]" See SDCL 23A-27A-1(3), (6), (9).
In the decision now known as Piper I, we affirmed
Piper's death sentence. 2006 S.D. 1, 709 N.W.2d 783.
Among the arguments we considered was Piper's claim that
SDCL 23A-27A-2 and SDCL 23A-27A-6 were unconstitutional
because they deprived him of his right to have a jury
determine his sentence in contravention of Ring v.
Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556
(2002). In Ring, the United States Supreme Court
held that Arizona's death penalty statutes violated a
defendant's Sixth Amendment right to a jury trial because
they required a judge, instead of a jury, to determine the
existence of statutory aggravating factors following a guilty
plea in a capital case. 536 U.S. at 589, 122 S.Ct. at 2432.
Despite this argument on appeal, Piper expressed no more than
a theoretical interest in having a jury determine his
sentence. Piper I, 2006 S.D. 1, ¶ 66, 709
N.W.2d at 808-09. He had not made a Ring argument to
the circuit court and was advised of his right to a jury for
sentencing at his change of plea hearing. We affirmed
Piper's sentence, holding Piper had, in fact, requested
sentencing by the court and waived his right to jury
We will not, without any supporting authority, sanction the
remarkable proposition that a defendant may waive the right
to a jury at sentencing, allow the trial court to impose a
sentence in accordance with the defendant's wishes, and
then, to avoid an unfavorable sentence, invalidate the waiver
on appeal by arguing a deprivation of the constitutional
right that the defendant did not want to exercise.
Id. ¶68, 709 N.W.2d at 810.
Nevertheless, we also analyzed the merits of Piper's
Ring claim. Construing the text of SDCL 23A-27A-2
and SDCL 23A-27A-6, we held that our capital punishment
statutes only regulate the sentencing procedure and,
unlike the statutes at issue in Ring, "do not
purport to regulate the right to jury sentencing in
capital cases." Id. ¶ 51, 709 N.W.2d at
804. The right to have a jury determine whether aggravating
factors exist during the sentencing phase remains available
to all defendants in capital cases by virtue of separate
constitutional and statutory guarantees. Id.
¶¶ 52-56, 709 N.W.2d at 804-06.
Although Piper had argued that our statutes required a court
to conduct the sentencing in a capital case involving a
guilty plea, he did not make the alternative argument-that in
the absence of a Ring deficiency, our statutes
unconstitutionally required a capital defendant to plead
guilty in order to be sentenced by a judge.
Piper's first petition seeking a writ of habeas corpus
was solely directed at his death sentence. In an entirely new
claim, Piper alleged the plea-taking court misstated the
unanimity requirement related to a jury's sentencing
determination in a capital case. The plea-taking court had,
in fact, incorrectly advised Piper that the jury must
unanimously agree on any sentence. Piper claimed the
court's advisement suggested that the jury must
unanimously agree to recommend life in prison, overlooking
the fact that one juror's decision to not impose the
death penalty would result in a life sentence. Piper claimed
the court's misstatement prevented a voluntary and
intelligent waiver of his right to have a jury sentencing,
but he made no argument about any potential impact on the
guilty pleas, themselves.
Piper was unsuccessful before the initial habeas
court. We reviewed the merits of the claim in
Piper v. Weber (Piper II), identified the erroneous
unanimity advisement, and granted relief, but not the relief
Piper had sought. 2009 S.D. 66, ¶¶ 20-21, 771
N.W.2d 352, 360. Piper argued that we should correct the
plea-taking court's error by converting his sentence to
life in prison without the possibility of parole.
Id. We declined, however, and remanded the case for
resentencing by a jury. Id.
First Motion to Withdraw his Pleas and Piper
Following our remittal in Piper II, Piper moved for
the first time to withdraw his guilty pleas pursuant to SDCL
23A-27-11, arguing among other things that the plea-taking
court failed to ensure that Piper understood he did not have
to plead guilty to obtain a court sentencing. The circuit
court denied the motion on its merits, finding
no manifest injustice. See SDCL 23A-27-11 (stating
that a motion to withdraw a guilty plea can be made after
sentencing "to correct manifest injustice").
The case proceeded to a jury resentencing and concluded with
the jury's unanimous recommendation to impose a sentence
of death. The jury found the existence of the same three
aggravating factors the plea-taking court had previously
found. SDCL 23A-27A-1(3), (6), (9).
Piper appealed the jury's sentence, and in State v.
Piper (Piper III), we held that Piper's 2011 death
sentence was lawfully imposed by the jury. 2014 S.D. 2,
¶ 44, 842 N.W.2d 338, 351. We also affirmed the denial
of Piper's motion to withdraw his guilty pleas made after
Piper II, but not on the merits. Id. ¶
13, 842 N.W.2d at 344. Instead, we held that the circuit
court lacked jurisdiction to consider Piper's motion to
withdraw his guilty pleas because the Piper II
limited remand only authorized the circuit court to conduct a
jury resentencing. Id.
Second Motion to Withdraw and the Current Habeas
In 2015, Piper filed a second habeas petition that is now at
issue in this appeal. Navigating the holdings of Piper
I and Piper II, the current petition alleges
his 2001 guilty pleas were not voluntary and intelligent.
Drawing on the plea-taking court's misstatement of the
unanimity requirement identified in Piper II, Piper
now argues that the error was more serious than he previously
claimed because he waived his right to a jury trial,
believing it was the only way to obtain sentencing by the
court. The argument identifies what Piper believes is a
lingering technical deficiency in the plea advisory, but he
does not allege he wants a jury to determine the issue of
guilt. Nor does he claim he is actually innocent.
Also contained in Piper's second petition is the related
claim that his original trial attorneys were ineffective when
they advised him of his rights related to a jury trial. The
petition alleges other ineffective assistance of counsel
claims regarding his resentencing counsels' performance,
including arguments that counsel: (1) failed to effectively
conduct voir dire; (2) did not thoroughly investigate the
State's witnesses; (3) failed to appeal the court's
denial of a mistrial after it allowed testimony regarding
penitentiary privileges; and (4) failed to either object or
appeal issues regarding the cross-examination of a defense
During the pendency of this second habeas action in the
circuit court,  Piper again moved to withdraw his guilty
plea, seeking a merits determination of whether his guilty
pleas were valid. The circuit court denied his motion,
stating it lacked jurisdiction to consider the motion because
the request remained outside of the limited remand from
Piper II. Piper appealed the court's denial
immediately, but we dismissed the appeal in an unpublished
order, concluding that we lacked appellate jurisdiction.
See State v. Kaufman, 2016 S.D. 24, ¶ 12, 877
N.W.2d 590, 592 (holding that the Legislature has not
provided a means to review the denial of motions to withdraw
guilty pleas made 30 days after entry of judgment).
The litigation involving the second habeas petition remained
pending before the circuit court,  which ultimately denied
relief. The court reviewed the merits of the second motion to
withdraw the pleas and determined that Piper's guilty
pleas were voluntary and intelligent. The court noted that
the claim could be barred under principles of claim
preclusion because Piper had not challenged his guilty pleas
until the remand proceedings following Piper II. The
circuit court also determined that Piper's ineffective
assistance of counsel claims were not sustainable because he
had not demonstrated that his counsels' representation
fell below an objective standard of reasonableness or that
any error subjected him to prejudice.
Piper appeals the circuit court's denial of his second
writ of habeas corpus raising several issues, which we
restate as follows:
1. Whether Piper's challenge to his guilty pleas presents
a reviewable and meritorious habeas claim.
2. Whether Piper's claim that the resentencing court
abused its discretion when it denied his motion to introduce
evidence of the State's inconsistent arguments presents a
reviewable and meritorious habeas claim.
3. Whether Piper's resentencing counsel provided
ineffective assistance in violation of his Sixth and
Fourteenth Amendment rights.
Review ability of Piper's Challenge to his Guilty
"Our review of [a] habeas corpus proceeding[ ] is
limited because it 'is a collateral attack on a final
judgment.'" Miller v. Young, 2018 S.D. 33,
¶ 12, 911 N.W.2d 644, 648 (quoting Vanden Hoek v.
Weber, 2006 S.D. 102, ¶ 8, 724 N.W.2d 858, 861). It
is not, as we have time and again held, a substitute for
appeal. See, e.g., Wright v. Young,
2019 S.D. 22, ¶ 10, 927 N.W.2d 116, 119 (explaining that
review of a habeas action is more limited than for a direct
appeal because it is a "collateral attack upon a final
judgment"). Courts may use the habeas corpus procedure
in the narrow realm of post-conviction litigation to
determine: "(1) whether the court has jurisdiction of
the crime and the person of the defendant; (2) whether the
sentence was authorized by law; and (3) in certain cases
whether an incarcerated defendant has been deprived of basic
constitutional rights." Piper II, 2009 S.D. 66,
¶ 7, 771 N.W.2d at 355.
However, even for claims alleging the deprivation of
constitutional rights, we have traditionally applied the
doctrine of res judicata to determine whether a
post-conviction claim is cognizable in a habeas corpus action
or whether it has been defaulted because it was not made in
an earlier proceeding. See, e.g., Ramos v.
Weber, 2000 S.D. 111, ¶ 8, 616 N.W.2d 88, 91. Res
judicata involves two distinct concepts-issue preclusion and
Issue preclusion refers to the effect of a judgment in
foreclosing relitigation of a matter that has been litigated
and decided .... Claim preclusion refers to the effect of a
judgment in foreclosing litigation of a matter that never has
been litigated, because of a determination that it should
have been advanced in an earlier suit[.]
Am. Family Ins. Grp. v. Robnik, 2010 S.D. 69, ¶
15, 787 N.W.2d 768, 774 (quoting Migra v. Warren City
Sch. Dist. Bal. of Ealuc, 465 U.S. 75, 77 n.1, 104 S.Ct.
892, 894 n.1, 79 L.Ed.2d 56 (1984)).
In Ramos, for example, we applied res judicata
principles to hold that a petitioner's due process
challenge to his sentence was not cognizable in a habeas
proceeding. 2000 S.D. 111, ¶ 8, 616 N.W.2d at 91. In his
direct appeal, the petitioner had unsuccessfully argued that
his sentence violated the Eighth Amendment's prohibition
on cruel and unusual sentences. Id. ¶ 2, 616
N.W.2d at 90. In an ensuing habeas action, the petitioner
again challenged his sentence, but this time claimed it
violated the due process provisions of the Fourteenth
Amendment. Id. ¶ 3, 616 N.W.2d at 90. Citing
the petitioner's plain opportunity to litigate the due
process claim earlier and the need for finality, we declined
to review the new claim:
The doctrine of res judicata disallows reconsidering an issue
that was actually litigated or that could have been
raised and decided in a prior action. The purpose behind
the doctrine is to protect parties from being subjected twice
to the same cause of action, since public policy is best
served when litigation has a finality .... This due process
challenge could have been raised in the direct appeal along
with the Eighth Amendment challenge. Under the doctrine of
res judicata, we will not ...