#29220-aff-PJD 2022 S.D. 5
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
****
CHADWICK WILLIAM HARRIS, Petitioner and Appellant,
v.
BRENT FLUKE, Warden of the Mike Durfee State Prison, Respondent and Appellee.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA
THE HONORABLE DOUGLAS E. HOFFMAN Judge
MARK KADI of Minnehaha County Office of the Public Advocate Sioux Falls, South Dakota Attorneys for petitioner and appellant.
JASON R. RAVNSBORG Attorney General
QUINCY R. KJERSTAD Assistant Attorney General Pierre, South Dakota Attorneys for respondent and appellee.
CONSIDERED ON BRIEFS AUGUST 24, 2020 OPINION FILED 01/19/22 #29220
DEVANEY, Justice
[¶1.] After this Court affirmed Chadwick Harris’s conviction of third-degree
rape on direct appeal, Harris applied for habeas corpus relief alleging ineffective
assistance of counsel. The habeas court dismissed Harris’s application after
granting the State’s motion for summary judgment, but the court issued a
certificate of probable cause on issues relating to the doctrine of res judicata. Harris
appeals, and we affirm.
Factual and Procedural Background
[¶2.] A grand jury indicted Harris on one count of third-degree rape—sexual
penetration of a person incapable of giving consent due to an intoxicating, narcotic,
or anesthetic agent, or hypnosis. Harris pled not guilty, and at trial, argued
consent as his defense. The jury found Harris guilty and he appealed, alleging
multiple errors. Relevant here, Harris asserted that the circuit court abused its
discretion in admitting the victim’s testimony, over a hearsay objection, that a rape
hotline operator had told her that “it sounded like [she] was raped multiple times”
and that she “should go to the ER right away.” Harris further asserted that plain
error occurred in light of the prosecutor’s interjection, during closing argument, of
his own personal study of the evidence and conclusions. 1 This Court summarily
affirmed Harris’s conviction.
1. During closing arguments, the prosecutor made the following remarks:
I thought long and hard about this case. I thought long and hard about whether or not this was a case that needed to be heard by a jury. And it’s a serious allegation. I thought about the evidence, and I looked at the video, the phone report. I looked at everything and it (continued . . .) -1- #29220
[¶3.] In 2018, Harris filed an amended application for habeas corpus relief
alleging ineffective assistance of counsel based on two alleged errors: (1) trial
counsel’s failure to object to the prosecutor’s alleged vouching during closing
argument; and (2) trial counsel’s failure to object on Confrontation Clause grounds
to the victim’s testimony restating what the rape hotline operator had said to her. 2
After the habeas court issued a provisional writ of habeas corpus, the State filed a
motion for summary judgment. The State argued that Harris could not establish
prejudice on his ineffective assistance of counsel claim related to the alleged
improper vouching because this Court summarily denied relief for that alleged error
on direct appeal. The State further asserted that Harris could not establish error
by his trial counsel’s failure to object on confrontation grounds to the victim’s
testimony because, according to the State, the statement was properly admitted.
[¶4.] At the hearing on the application, the habeas court took judicial notice
of the underlying criminal file and heard arguments from counsel. On the issue of
the alleged improper vouching by the prosecutor, the habeas court granted
summary judgment. It reasoned that the prejudice inquiry on plain error review is
the same as the prejudice inquiry under Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and thus, this Court’s denial of relief on
________________________ (. . . continued) became clear to me that Mr. Harris did take advantage of [R.K.’s] impairment; that she was incapable of consent; that he knew it; and that a jury needed to hear about it.
2. Harris’s habeas counsel is different than both his appellate and trial counsel.
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direct appeal under plain error review was res judicata precluding Harris’s
ineffective assistance of counsel claim related to the same error.
[¶5.] The court next considered the State’s argument that summary
judgment would be appropriate on Harris’s claim that trial counsel was ineffective
for failing to raise a Confrontation Clause violation when objecting to the victim’s
testimony restating what the rape hotline operator had said. The State asserted
that this testimony was foundational and not offered for the truth of the matter
asserted. In response, Harris’s counsel asserted that the statement was testimonial
because it went “to the ultimate conclusion of the case: Whether a rape occurred.”
After further argument by counsel for both parties and questions from the habeas
court, the court granted the State summary judgment on this claim of ineffective
assistance of counsel also.
[¶6.] Harris appeals, asserting the following issues as stated in the habeas
court’s certificate of probable cause:
1. Whether the ineffective assistance of counsel prejudice standard articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) requires a lower level or quality of showing of prejudice than is required under plain error analysis as articulated in State v. McMillen, 2019 S.D. 40, 931 N.W.2d 725.
2. Whether a judicial determination on appeal that alleged trial irregularities do not constitute plain error precludes, under the doctrine of res judicata, collateral review of counsel’s performance as ineffective assistance for failing to address and seek to mitigate the same issues at trial.
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Standard of Review
[¶7.] As we recently stated in Neels v. Dooley:
“A habeas corpus applicant has the initial burden of proof to establish a colorable claim for relief.” Jenner v. Dooley, 1999 S.D. 20, ¶ 11, 590 N.W.2d 463, 468. However, “[h]abeas corpus is not a substitute for direct review.” Loop v. Class, 1996 S.D. 107, ¶ 11, 554 N.W.2d 189, 191 (citation omitted). Rather, “[h]abeas corpus can be used only to review (1) whether the court had 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.” Id. (citation omitted). Ordinarily, we review a habeas court’s findings of fact for clear error, see Jenner, 1999 S.D. 20, ¶ 11, 590 N.W.2d at 468, but here the habeas court granted the State’s motion for summary judgment as a matter of law. Therefore, our review is de novo. See Reutter v. Meierhenry, 405 N.W.2d 627, 630 (S.D. 1987) (recognizing that the rules governing summary judgment apply in habeas proceedings).
2022 S.D. 4, ¶ 10, 969 N.W.2d 729, 733.
Analysis and Decision
[¶8.] The first issue on appeal is resolved by this Court’s recent decision in
Neels, where counsel advanced the same arguments as those made here on behalf of
Harris. 3 See id.
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#29220-aff-PJD 2022 S.D. 5
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
****
CHADWICK WILLIAM HARRIS, Petitioner and Appellant,
v.
BRENT FLUKE, Warden of the Mike Durfee State Prison, Respondent and Appellee.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA
THE HONORABLE DOUGLAS E. HOFFMAN Judge
MARK KADI of Minnehaha County Office of the Public Advocate Sioux Falls, South Dakota Attorneys for petitioner and appellant.
JASON R. RAVNSBORG Attorney General
QUINCY R. KJERSTAD Assistant Attorney General Pierre, South Dakota Attorneys for respondent and appellee.
CONSIDERED ON BRIEFS AUGUST 24, 2020 OPINION FILED 01/19/22 #29220
DEVANEY, Justice
[¶1.] After this Court affirmed Chadwick Harris’s conviction of third-degree
rape on direct appeal, Harris applied for habeas corpus relief alleging ineffective
assistance of counsel. The habeas court dismissed Harris’s application after
granting the State’s motion for summary judgment, but the court issued a
certificate of probable cause on issues relating to the doctrine of res judicata. Harris
appeals, and we affirm.
Factual and Procedural Background
[¶2.] A grand jury indicted Harris on one count of third-degree rape—sexual
penetration of a person incapable of giving consent due to an intoxicating, narcotic,
or anesthetic agent, or hypnosis. Harris pled not guilty, and at trial, argued
consent as his defense. The jury found Harris guilty and he appealed, alleging
multiple errors. Relevant here, Harris asserted that the circuit court abused its
discretion in admitting the victim’s testimony, over a hearsay objection, that a rape
hotline operator had told her that “it sounded like [she] was raped multiple times”
and that she “should go to the ER right away.” Harris further asserted that plain
error occurred in light of the prosecutor’s interjection, during closing argument, of
his own personal study of the evidence and conclusions. 1 This Court summarily
affirmed Harris’s conviction.
1. During closing arguments, the prosecutor made the following remarks:
I thought long and hard about this case. I thought long and hard about whether or not this was a case that needed to be heard by a jury. And it’s a serious allegation. I thought about the evidence, and I looked at the video, the phone report. I looked at everything and it (continued . . .) -1- #29220
[¶3.] In 2018, Harris filed an amended application for habeas corpus relief
alleging ineffective assistance of counsel based on two alleged errors: (1) trial
counsel’s failure to object to the prosecutor’s alleged vouching during closing
argument; and (2) trial counsel’s failure to object on Confrontation Clause grounds
to the victim’s testimony restating what the rape hotline operator had said to her. 2
After the habeas court issued a provisional writ of habeas corpus, the State filed a
motion for summary judgment. The State argued that Harris could not establish
prejudice on his ineffective assistance of counsel claim related to the alleged
improper vouching because this Court summarily denied relief for that alleged error
on direct appeal. The State further asserted that Harris could not establish error
by his trial counsel’s failure to object on confrontation grounds to the victim’s
testimony because, according to the State, the statement was properly admitted.
[¶4.] At the hearing on the application, the habeas court took judicial notice
of the underlying criminal file and heard arguments from counsel. On the issue of
the alleged improper vouching by the prosecutor, the habeas court granted
summary judgment. It reasoned that the prejudice inquiry on plain error review is
the same as the prejudice inquiry under Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and thus, this Court’s denial of relief on
________________________ (. . . continued) became clear to me that Mr. Harris did take advantage of [R.K.’s] impairment; that she was incapable of consent; that he knew it; and that a jury needed to hear about it.
2. Harris’s habeas counsel is different than both his appellate and trial counsel.
-2- #29220
direct appeal under plain error review was res judicata precluding Harris’s
ineffective assistance of counsel claim related to the same error.
[¶5.] The court next considered the State’s argument that summary
judgment would be appropriate on Harris’s claim that trial counsel was ineffective
for failing to raise a Confrontation Clause violation when objecting to the victim’s
testimony restating what the rape hotline operator had said. The State asserted
that this testimony was foundational and not offered for the truth of the matter
asserted. In response, Harris’s counsel asserted that the statement was testimonial
because it went “to the ultimate conclusion of the case: Whether a rape occurred.”
After further argument by counsel for both parties and questions from the habeas
court, the court granted the State summary judgment on this claim of ineffective
assistance of counsel also.
[¶6.] Harris appeals, asserting the following issues as stated in the habeas
court’s certificate of probable cause:
1. Whether the ineffective assistance of counsel prejudice standard articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) requires a lower level or quality of showing of prejudice than is required under plain error analysis as articulated in State v. McMillen, 2019 S.D. 40, 931 N.W.2d 725.
2. Whether a judicial determination on appeal that alleged trial irregularities do not constitute plain error precludes, under the doctrine of res judicata, collateral review of counsel’s performance as ineffective assistance for failing to address and seek to mitigate the same issues at trial.
-3- #29220
Standard of Review
[¶7.] As we recently stated in Neels v. Dooley:
“A habeas corpus applicant has the initial burden of proof to establish a colorable claim for relief.” Jenner v. Dooley, 1999 S.D. 20, ¶ 11, 590 N.W.2d 463, 468. However, “[h]abeas corpus is not a substitute for direct review.” Loop v. Class, 1996 S.D. 107, ¶ 11, 554 N.W.2d 189, 191 (citation omitted). Rather, “[h]abeas corpus can be used only to review (1) whether the court had 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.” Id. (citation omitted). Ordinarily, we review a habeas court’s findings of fact for clear error, see Jenner, 1999 S.D. 20, ¶ 11, 590 N.W.2d at 468, but here the habeas court granted the State’s motion for summary judgment as a matter of law. Therefore, our review is de novo. See Reutter v. Meierhenry, 405 N.W.2d 627, 630 (S.D. 1987) (recognizing that the rules governing summary judgment apply in habeas proceedings).
2022 S.D. 4, ¶ 10, 969 N.W.2d 729, 733.
Analysis and Decision
[¶8.] The first issue on appeal is resolved by this Court’s recent decision in
Neels, where counsel advanced the same arguments as those made here on behalf of
Harris. 3 See id. ¶ 16–17, 969 N.W.2d at 735–36. In that case, we reviewed United
States Supreme Court precedent and decisions from this Court and specifically held
that the showing of prejudice under Strickland is the same as that required to
establish prejudice under plain error review. Id. Likewise, here, the habeas court
properly determined that the prejudice standard applicable to Harris’s ineffective
assistance of counsel claims on habeas requires the same showing of prejudice as is
3. Neels and Harris were represented by the same attorney in their respective habeas actions.
-4- #29220
required under plain error review on direct appeal related to the same underlying
trial errors. 4
[¶9.] This Court’s decision in Neels is also instructive in resolving the
question whether the habeas court properly determined that the doctrine of res
judicata precludes a consideration of Harris’s habeas claim that counsel was
ineffective for failing to object to the prosecutor’s improper vouching. In particular,
the Court in Neels examined whether a denial of relief on direct appeal under plain
error review necessarily precludes review of an ineffective assistance of counsel
claim on habeas for the same underlying trial errors. Id. ¶¶ 20–24, 969 N.W.2d at
736–38. In Neels, we quoted the four prongs a defendant must show to establish
plain error and then explained that “although the prejudice inquiry on plain error
review is the same as that applied to an ineffective assistance of counsel claim, this
alone does not mean that in all cases a denial of relief on direct appeal under plain
error review bars a defendant from obtaining review on habeas of a claim of
ineffective assistance of counsel related to the same underlying errors.” Id. ¶ 20,
969 N.W.2d at 736. Rather, for res judicata to bar a subsequent ineffective
assistance claim on habeas arising out of the same underlying trial error, the denial
4. Counsel for Harris advances a similar argument as that asserted and rejected in Neels. In particular, counsel for Harris asks this Court to view the prejudice inquiry from the perspective that Harris’s trial counsel’s failure to preserve issues at trial subjected Harris’s later alleged errors to a more onerous standard of review on direct appeal. However, the prejudice inquiry necessitated by Harris’s ineffective assistance claim looks to the result at trial, not on appeal. As we said in Neels, “the controlling inquiry under Strickland is whether the error on the part of trial counsel ‘undermined confidence in the outcome of the trial,’ and not ‘whether trial counsel’s error resulted in an unfavorable standard of review on appeal.’” 2022 S.D. 4, ¶ 13, 969 N.W.2d at 734 (citation omitted).
-5- #29220
of relief on direct appeal under plain error review must occur “because the
defendant failed to establish error or prejudice[.]” Id.
[¶10.] Therefore, we begin by reviewing the language of this Court’s
summary order from Harris’s direct appeal, which provides in relevant part “that it
is manifest on the face of the briefs and the record that the appeal is without merit
on the following grounds: 1. that the issues on appeal are clearly controlled by
settled South Dakota law or federal law binding upon the states . . . .” Similar to
the second claim of ineffective assistance of counsel in Neels, the language of the
summary order here does not identify which prong or prongs of plain error review
this Court relied upon in denying Harris relief on his claim of improper vouching by
the prosecutor. However, as we explained in Neels, albeit for a different alleged
error, by finding the “issue to be ‘without merit’ because the issue was ‘clearly
controlled by settled South Dakota law[,]’” the Court “found either no error or no
prejudice.” See 2022 S.D. 4, ¶ 24, 969 N.W.2d at 738.
[¶11.] Finally, as we observed in Neels, the review of the prejudicial impact of
certain types of trial error, regardless of whether raised on direct appeal or in a
habeas proceeding, is identical. See id. ¶ 25. Here, the prejudice inquiry attendant
to an ineffective assistance of counsel claim related to the prosecutor’s improper
vouching does not require further development of a record on habeas. The impact of
the statement can be ascertained by reviewing the existing trial record. Therefore,
regardless of whether trial counsel’s performance is deemed deficient under
Strickland standards for failing to object to the prosecutor’s commentary, this
Court’s denial of relief on direct appeal by summary order under SDCL 15-26A-
-6- #29220
87.1(A)(1) for the same underlying trial error is res judicata, precluding review of
Harris’s ineffective assistance claim on habeas. “It is well settled that ‘[a] habeas
court cannot [ ] review issues previously decided by this Court on direct appeal.’”
Neels, 2022 S.D. 4, ¶ 11, 969 N.W.2d at 733 (quoting Lodermeier v. Class, 1996 S.D.
134, ¶ 24, 555 N.W.2d 618, 626). The habeas court properly dismissed this
ineffective assistance of counsel claim based upon res judicata principles.
[¶12.] Harris also argues that the habeas court erred in granting summary
judgment on his ineffective assistance of counsel claim alleging that his trial
counsel should have asserted a Confrontation Clause violation when objecting to the
victim’s testimony about what the rape hotline operator had told her. However, the
certificate of probable cause does not identify this issue for the Court’s review on
appeal. The certificate refers only to the res judicata effect of a decision on direct
appeal applying plain error review. As Harris acknowledges, trial counsel objected
on hearsay grounds to the admission of this testimony from the victim, and this
Court applied the abuse of discretion standard on direct appeal in reviewing the
trial court’s admission of the same over counsel’s hearsay objection. Thus, there
was no judicial determination on direct appeal applying plain error review to the
Confrontation Clause issue Harris now raises in his ineffective assistance of counsel
claim relating to this testimony.
[¶13.] From our review of the transcript of the habeas hearing, it appears the
habeas court granted the State summary judgment on the merits of Harris’s claim
that trial counsel was ineffective for failing to object to the admission of the rape
hotline operator’s statements on Confrontation Clause grounds. Although the
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habeas court had indicated in its oral ruling that it would issue a certificate of
probable cause as to both ineffective assistance of counsel claims, the issues later
identified by the court in its certificate of probable cause do not encompass this
particular claim. Therefore, we have no jurisdiction to consider it. See White v.
Weber, 2009 S.D. 44, ¶ 10, 768 N.W.2d 144, 149 (declining to review ineffective
assistance of counsel claims not identified as appealable issues in the certificate of
probable cause).
[¶14.] Affirmed.
[¶15.] JENSEN, Chief Justice, and SALTER, Justice, and GILBERTSON,
Retired Chief Justice, concur.
[¶16.] KERN, Justice, concurs in part and dissents in part.
[¶17.] MYREN, Justice, not having been a member of the Court at the time
this action was submitted to the Court, did not participate.
KERN, Justice (concurring in part and dissenting in part).
[¶18.] In Harris’s direct appeal on the issue of alleged improper vouching in
the prosecutor’s closing argument, this Court summarily affirmed Harris’s
conviction, reasoning, as the majority opinion quotes, “that it is manifest on the face
of the briefs and the record that the appeal is without merit on the following
grounds: 1. that the issues on appeal are clearly controlled by settled South Dakota
law or federal law binding upon the states . . . .” Because I do not agree that the
issue regarding alleged improper vouching in Harris’s current habeas corpus
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petition is precluded by this language under the doctrine of res judicata, I
respectfully dissent as to this issue only.
[¶19.] As in Neels v. Dooley, the majority opinion infers from the summary
affirmance language quoted above that this Court found “either no error or no
prejudice” from the alleged improper vouching on direct appeal. 2022 S.D. 4, ¶ 24,
969 N.W.2d at 738. However, the summary affirmance language here and the
majority opinion’s inference therefrom does not satisfy the applicable res judicata
requirement that a matter must have been already litigated and decided to foreclose
litigation of that matter. 5 Here, the summary affirmance language lacks a decision
from this Court on the issue of prejudice arising from alleged improper vouching.
Therefore, this issue is not properly precluded under the doctrine of res judicata.
[¶20.] Here, the same caution set forth in the Neels dissent applies:
The writ of habeas corpus is the last line of defense within our state judicial system against deprivations of basic constitutional rights in criminal matters. When, on direct appeal, this Court declines to specifically address a defendant’s claims in a written opinion, or in a summary order, it creates uncertainty as to the preclusive effect of the direct appeal on a subsequent habeas petition alleging ineffective assistance of counsel. For this reason, res judicata should be applied to habeas corpus petitions in only the clearest of circumstances by this Court—not based on a summary conclusion in an order of affirmance.
Id. ¶ 32, 969 N.W.2d at 739.
5. As clarified in the dissent in Neels, “Our doctrine of res judicata includes two concepts: issue preclusion and claim preclusion.” 2022 S.D. 4, ¶ 31, 969 N.W.2d at 739. Again, as in Neels, “Only issue preclusion is relevant here, and issue preclusion may only foreclose relitigation of matters that have already been ‘litigated and decided.’” Id. (quoting Piper v. Young, 2019 S.D. 65, ¶ 22, 936 N.W.2d 793, 804).
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