Harris v. Fluke

969 N.W.2d 717

Chadwick William HARRIS, Petitioner and Appellant,

v.Brent FLUKE, Warden of the Mike Durfee State Prison, Respondent and Appellee.

#29220

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS AUGUST 24, 2020

OPINION FILED January 19, 2022

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.

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.

[¶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 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.

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 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 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-87.1(A)(1) for the same underlying trial error is res judicata, precluding review of Harris's ineffective...