The
SD Supreme Court handed down one decision this morning, holding inter alia:
- Inmate denied possibility of review in case
where habeas counsel failed to seek certificate of probable cause for
appeal of trial court’s dismissal
LEE
v. WEBER, 2023 S.D. 54: This is an
action for habeas relief filed by a prisoner who was sentenced to life
for 2nd degree murder in 1998.
This is actually the prisoner’s 2nd habeas action and
it includes the assertion that his attorney in his 1st habeas
action was ineffective for failure to seek a certificate of probable
cause for an appeal. This 2nd
action was filed in 2007, but languished on the docket until 2018 at which time
the trial court issued an order to show cause for dismissal for failure to
prosecute. State moved to dismiss the
action on the basis that prisoner did not have a right to appeal the dismissal
of his 1st habeas action and because notice had not been timely
served on the State, arguing that the 30 day time limit of 21-27-18.1 is
absolute. The trial court denied the
State’s Motions to Dismiss. This is an interlocutory appeal by the State.
In this decision, the State prevails. But, this decision generates 3 separate
opinions. The Court’s opinion is
authored by Justice Myren and agreed to by Chief Justice Jensen. Justice Salter filed a separate concurring
opinion. Justice DeVaney filed a
separate concurring opinion, with which Justice Kern agrees. The issue that divides the Justices appears
to be the applicability (or continued stare decisis effect) of Jackson
v. Weber, 2001 S.D. 30 and the possibility of relief for prisoner (in this
situation) under Rule 60(b) (civil for collateral attacks of civil judgments,
SDLC 15-6-60(b)).
This
decision may be accessed at
http://ujs.sd.gov/Supreme_Court/opinions.aspx .
