Supplemental Brief — Charles Russell Rhines, Petitioner v. South Dakota

CASE NO. 17-8791 (CAPITAL CASE)

IN THE SUPREME COURT OF THE UNITED STATES

___________________________________________________________________________

CHARLES RUSSELL RHINES,

Petitioner,

v.

STATE OF SOUTH DAKOTA,

Respondent.

___________________________________________________________________________

On Petition for a Writ of Certiorari to

The Supreme Court of the State of South Dakota

___________________________________________________________________________

ATTACHMENT A TO SUPPLEMENTAL BRIEF

IN SUPPORT OF A PETITION FOR A WRIT OF CERTIORARI

___________________________________________________________________________

Neil Fulton, Federal Defender

By: Jason J. Tupman

Assistant Federal Defender

Office of the Federal Public Defender

Districts of South and North Dakota

200 W. 10th Street, Suite 200

Sioux Falls, SD 57104

(605) 330-4489

Claudia Van Wyk*

Stuart Lev

Assistant Federal Defenders

Federal Community Defender Office

for the Eastern District of Pennsylvania

601 Walnut Street, Suite 545 West

Philadelphia, PA 19106

(215) 928-0520

*Counsel of Record

Member of the Bar of the Supreme Court

Counsel for Petitioner, Charles Russell

Rhines

Dated: May 29, 2018

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UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

WESTERN DIVISION

CHARLES RUSSELL RHINES,

Petitioner,

vs.

DARIN YOUNG, WARDEN, SOUTH

DAKOTA STATE PENITENTIARY;

5:00-CV-05020-KES

ORDER DENYING MOTION FOR

LEAVE TO AMEND, DENYING

MOTION FOR RELIEF FROM

JUDGMENT, AND DENYING MOTION

FOR EXPERT ACCESS

Respondent.

Petitioner, Charles Russell Rhines, moves the court for leave to amend

his petition for habeas corpus under Fed. R. Civ. P. 15(a)(2), or in the

alternative, moves the court for relief from judgment under Fed. R. Civ. P.

60(b)(6). Docket 383. Respondent, Darin Young, resists the motion on both

grounds. Docket 389. In addition, Rhines moves the court for an order

requiring Young to produce Rhines for two mental health expert evaluations in

support of a potential clemency application to the South Dakota Governor.

Docket 394. Respondent also opposes Rhines’s motion for expert access.

Docket 396. 1 For the following reasons, the court denies Rhines’s motion to

1 Contained in respondent’s briefs in opposition to Rhines’s motions are

numerous ethical allegations against the Pennsylvania Federal Community

Defender’s Office. Such claims have no relevance to Rhines’s case, the law

pertinent to Rhines’s motions, or the particular attorneys appointed to

represent Rhines. Rhines’s motions appear to the court to be no more than

zealous representation of Rhines, which is what this court expects from court

appointed counsel. Respondent’s ethical allegations are stricken as scandalous.

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amend under Rule 15(a)(2), denies Rhines’s motion for relief from judgment

under Rule 60(b)(6), and denies Rhines’s motion for expert access.

BACKGROUND

The factual and procedural history of this case is more fully set forth in

the court’s February 16, 2016 order granting summary judgment in favor of

respondent. See Docket 305. The court will briefly summarize the procedural

history and then address any facts that are relevant to Rhines’s pending

motions throughout the analysis.

Rhines is an inmate at the South Dakota State Penitentiary in Sioux

Falls, South Dakota. He was convicted of premeditated first-degree murder and

third-degree burglary of a Dig’Em Donuts Shop in Rapid City, South Dakota.

On January 26, 1993, a jury found that the death penalty should be imposed,

and the trial judge sentenced Rhines to death by lethal injection. The South

Dakota Supreme Court affirmed Rhines’s conviction and sentence on direct

appeal, and the United States Supreme Court denied further review in 1996.

Rhines applied for a writ of habeas corpus in state court, raising numerous

issues, which was denied in 1998 and affirmed by the South Dakota Supreme

Court in 2000.

Rhines then filed a federal petition for a writ of habeas corpus in 2000.

This court found several of Rhines’s claims were unexhausted and granted a

stay pending exhaustion in state court. Following respondent’s appeal, the

Eighth Circuit vacated the stay and remanded the case. Rhines filed a petition

for a writ of certiorari in the United States Supreme Court, which granted

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certiorari. After finding that a stay and abeyance is permissible under some

circumstances, the Supreme Court remanded the case for further analysis not

relevant to the pending motions. Ultimately, Rhines’s petition in this court was

stayed until he exhausted his state court claims. When this court lifted the

stay, respondent moved for summary judgment. On February 16, 2016, this

court granted respondent’s motion for summary judgment, denied Rhines’s

amended habeas petition, and ruled on numerous other motions not relevant

to the current motions. See Dockets 304, 305, 306. The court then denied

Rhines’s motion to alter or amend the judgment under Fed. R. Civ. P. 59(e).

Docket 348. On August 3, 2016, Rhines appealed this court’s rulings to the

Eighth Circuit Court of Appeals. Docket 357. Rhines has filed the two current

motions during the pendency of his appeal.

DISCUSSION

I.

Rhines’s Motion for Leave to Amend Petition under Fed. R. Civ. P.

15(a)(2)

Under the Anti-Terrorism and Effective Death Penalty Act of 1996

(AEDPA), a petitioner must file his or her application for a writ of habeas

corpus within one year of:

(A) the date on which the judgment became final by the conclusion

of direct review or the expiration of the time for seeking such

review;

(B) the date on which the impediment to filing an application created

by State action in violation of the Constitution or laws of the

United States is removed, if the applicant was prevented from

filing by such State action;

(C) the date on which the constitutional right asserted was initially

recognized by the Supreme Court, if the right has been newly

recognized by the Supreme Court and made retroactively

applicable to cases on collateral review; or

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(D) the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of due

diligence.

28 U.S.C. § 2244(d)(1).

Because habeas proceedings are civil in nature, the Federal Rules of Civil

Procedure apply. See 28 U.S.C. § 2242 (“[An application for a writ of habeas

corpus] may be amended or supplemented as provided in the rules of

procedure applicable to civil actions.”). Federal Rule of Civil Procedure 15(a)(2)

allows a party to amend its pleading with the opposing party’s consent or the

court’s leave “when justice so requires.” But a petitioner’s amendment must

meet the relation back requirements set forth in Federal Rule of Civil Procedure

15, which provides:

(1) When an Amendment Relates Back. An amendment to a pleading

relates back to the date of the original pleading when:

(A) the law that provides the applicable statute of limitations

allows relation back;

(B) the amendment asserts a claim or defense that arose out of

the conduct, transaction, or occurrence set out--or attempted

to be set out--in the original pleading . . . .

Fed. R. Civ. P. 15(c); see also McKay v. Purkett, 255 F.3d 660, 660-61 (8th Cir.

2001) (applying Rule 15(c) to a petitioner’s § 2254 amended petition and

affirming the district court’s dismissal of the amended claims because they did

not relate back to petitioner’s original claims). Thus, in the habeas context, any

amendment to a timely filed habeas petition must be filed within AEDPA’s oneyear limitations period or the amendment must assert a claim that arose out of

the conduct, transaction, or occurrence set out in the original petition.

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The Supreme Court has addressed what the phrase “conduct,

transaction, or occurrence” means under Fed. R. Civ. P. 15(c)(2) in the habeas

framework. In Mayle, the Ninth Circuit, in agreement with the Seventh Circuit,

had interpreted “conduct, transaction, or occurrence” to allow relation back to

an original habeas petition when the petitioner’s new claim stemmed from the

petitioner’s trial, conviction, or sentence. Mayle v. Felix, 545 U.S. 644, 656

(2005). The Supreme Court rejected that definition because it was too broad.

Id. at 656-58. “An amended habeas petition, we hold, does not relate back

(and thereby escape AEDPA’s one-year time limit) when it asserts a new ground

for relief supported by facts that differ in both time and type from those the

original pleading set forth.” Id. at 650.

The substance of Rhines’s new claim is that some jurors from his trial

have recently expressed the notion that a homosexual bias against Rhines

“played a significant role in the decision to sentence him to death.” Docket 383

at 1. And Rhines argues such juror bias is now admissible under the United

States Supreme Court’s recent decision in Pena-Rodriguez v. Colorado, 137 S.

Ct. 855 (2017). Id.

Because Rhines has appealed this court’s denial of his habeas petition to

the Eighth Circuit and that appeal is still pending, this court must first

determine if it has jurisdiction over Rhines’s current motion. Rhines maintains

that this court still has jurisdiction to allow his amendment because “the

judgment is not yet final.” Id. at 3. Other than his reliance on Nims v. Ault, 251

F.3d 698 (8th Cir. 2001) and resistance to Williams v. Norris, 461 F.3d 999 (8th

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Cir. 2006), which will be addressed below, see infra Section II.B., Rhines has

not cited any Eighth Circuit precedent to establish that a judgment is not

considered “final” until it is affirmed on appeal. In response, respondent

contends that this court’s judgment is final so the Eighth Circuit has exclusive

jurisdiction over Rhines’s case. Docket 389 at 7-9.

A.

Judgment is Final

In general, a district court decision is final if “there is some clear and

unequivocal manifestation by the trial court of its belief that the decision made,

so far as [the court] is concerned, is the end of the case.” Waterson v. Hall, 515

F.3d 852, 855 (8th Cir. 2008) (internal quotations omitted) (alteration in

original). “A final decision is ordinarily one which disposes of all the rights of all

the parties to an action.” Patterson v. City of Omaha, 779 F.3d 795, 800 (8th

Cir. 2015) (quotation omitted).

Here, judgment is final. In addition to the order granting respondent’s

motion for summary judgment and denying Rhines’s petition for habeas corpus

(Docket 305), this court entered a judgment denying Rhines’s petition for

habeas corpus relief on February 16, 2016. Docket 306. Entering a judgment

clearly demonstrated the court’s belief that Rhines’s case was over. Rhines

moved the court to alter or amend its judgment under Fed. R. Civ. P. 59(e)

(Docket 323), which this court denied. Docket 348. Rhines then appealed

several of this court’s rulings, including this court’s order granting summary

judgment in favor of respondent (Docket 305) and judgment (Docket 306).

Docket 357. See Patterson, 779 F.3d at 800 (noting that the Eighth Circuit’s

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jurisdiction is “limited to appeals taken from final decisions of the district

courts.”). If the Eighth Circuit affirms this court’s order and judgment, nothing

further will remain to be done. Thus, this court’s judgment, which disposed of

all claims in Rhines’s petition for habeas corpus relief, was final.

B.

Because this Court’s Judgment was Final, Rhines’s Motion to

Amend is a Successive Petition.

AEDPA established a strict procedure that prisoners in custody under a

state court judgment must follow in order to file a second or successive habeas

corpus application challenging that custody. Under 28 U.S.C. § 2244(b)(2), a

claim presented in a successive habeas petition under section 2254 that was

not presented in the prior petition shall be dismissed unless:

(A) the applicant shows that the claim relies on a new rule of

constitutional law, made retroactive to cases on collateral review

by the Supreme Court, that was previously unavailable; or

(B) (i) the factual predicate for the claim could not have been

discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of

the evidence as a whole, would be sufficient to establish by clear

and convincing evidence that, but for constitutional error, no

reasonable factfinder would have found the applicant guilty of

the underlying offense.

28 U.S.C. § 2244(b)(2).

Before a district court can consider a successive petition, the petitioner

“shall move in the appropriate court of appeals for an order authorizing the

district court to consider the application.” Id. § 2244(b)(3)(A). There is no

indication that Rhines has moved the Eighth Circuit Court of Appeals for an

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order authorizing this court to consider Rhines’s new claim of juror bias based

on his homosexuality. 2

Rhines argues that “[a]n amendment filed in the district court during the

pendency of an appeal of the habeas petition, however, is not considered a

second or successive petition.” Docket 383 at 4. He relies on Nims v. Ault, 251

F.3d 698 (8th Cir. 2001) to support his position, arguing that Nims suggests

“the addition of a juror misconduct claim after a district court’s denial of a

habeas petition, but before that petition is resolved on appeal, was not

successive” because the Nims court considered the claim on its merits. Id.

Nims was convicted of kidnapping and sexually abusing an eight year old

girl, which was affirmed by the Iowa Supreme Court on direct appeal. Nims,

251 F.3d at 700. After his post-conviction application for relief was denied,

2 On January 11, 2017, Rhines filed a protective petition for writ of habeas

corpus while his application for authorization to file a successive petition was

pending in the Eighth Circuit. Docket 377. The new claim raised in Docket

377, Rhines argues, is based on a new rule of constitutional law made

retroactive to cases on collateral review that was announced in Hurst v. Florida,

136 S. Ct. 616 (2016). Rhines contends that Hurst stands for the rule that a

statute must require a jury to make death penalty findings beyond a

reasonable doubt in order to comply with the Sixth Amendment, and South

Dakota’s death penalty statute violates this rule. Docket 377 at 4-6. The Eighth

Circuit consolidated Rhines’s petition for permission to file a successive habeas

petition (Rhines v. Young, No. 17-1060 (8th Cir. application docketed Jan. 10,

2017)), with Rhines’s appeal of this court’s orders (Rhines v. Young, No. 163360 (8th Cir. appeal docketed Aug. 15, 2016)). See No. 17-1060; 16-3360,

CLERK ORDER, docketed Feb. 16, 2017. “[T]he panel to which the consolidated

cases are submitted for disposition on the merits shall determine whether to

grant or deny the petition at the time it considers the appeal from the district

court’s order denying habeas relief in No. 16-3360.” Id. This application for

authorization, however, does not request authorization to file a successive

petition on Rhines’s new claim of sexual orientation bias by his state court

jury.

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Nims filed a federal habeas corpus petition, which was initially denied by the

district court. Id. While that denial was on appeal to the Eighth Circuit, Nims

requested the Eighth Circuit to remand the case to the district court so Nims

could file an amended petition raising a newly-discovered claim of juror

misconduct. Id. The Eighth Circuit dismissed the appeal without prejudice and

remanded the case to the district court. Id.

The district court then dismissed Nims’s amended petition without

prejudice in order for Nims to fully exhaust his state remedies. Id. Following an

unsuccessful attempt in front of the Iowa post-conviction court, Nims again

filed a habeas petition in federal court, which was denied by the district court

because the newly-discovered claim of juror misconduct was procedurally

defaulted. Id. at 701. The district court issued a certificate of appealability, and

the Eighth Circuit opinion, that Rhines currently relies on, followed.

After discussing Nims’s failure to show cause for and prejudice from the

default, the Eighth Circuit ultimately concluded that the district court did not

err in finding that Nims’s new claims were procedurally defaulted. Id. at 703.

But because the Eighth Circuit considered Nims’s new juror misconduct claim

on its merits rather than on jurisdictional grounds for successive petitions,

Rhines argues that Nims stands for the proposition that an amendment filed in

the district court while an appeal is pending is not a successive petition. See id.

at 703-06 (Bye, J., dissenting) (stating that Nims’s petition should be

considered successive and noting that “[t]he majority permits a prisoner to file

a petition in district court, receive a complete adjudication on the merits,

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appeal, dismiss the appeal to add a new claim, and start all over without

penalty.”) (emphasis in original). As an initial matter, the court does not read

Nims to stand for the far-reaching proposition that Rhines suggests.

In Williams v. Norris, 461 F.3d 999 (8th Cir. 2006), on the other hand,

the Eighth Circuit affirmed the district court’s denial of a motion for relief from

judgment after finding that it was a successive petition. The federal district

court denied Williams’s original petition for a writ of habeas corpus. Id. at

1000. Williams then filed a motion to alter or amend the judgment, or

alternatively, for relief from judgment, but the district court denied Williams’s

motion as successive. Id. Then a renewed motion for relief from judgment was

filed on Williams’s behalf, raising a new claim based on a recent United States

Supreme Court ruling. The district court determined it was also a successive

habeas petition and denied the motion. Id. at 1000-01.

On appeal, the Eighth Circuit reviewed whether Williams’s motion for

relief from judgment constituted a successive habeas petition de novo. Id. at

1001. The first argument raised by Williams, and noted as the “strongest

argument” by the Eighth Circuit, “revolve[d] around the fact that the district

court did not file a separate judgment, as required by Rule 58, when denying

Williams’s initial petition.” Id. 3 Williams thus argued that the denial of his

3 As discussed above, see supra Section II.A., this court filed a judgment as a

separate document in Rhines’s case (Docket 306), suggesting Rhines’s

argument here is weaker than the argument raised by Williams. See Williams,

461 F.3d at 1001 (noting the district court’s inadvertent failure to file a

judgment as a separate document was Williams’s “strongest argument”).

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petition was not a final judgment so his Rule 59(e) motions to alter or amend

the judgment and his Rule 60(b) motions for relief from judgment “should have

been treated as motions to amend the initial habeas petition under Rule 15.”

Id. Despite the clerical error, the Eighth Circuit found that the district court

properly dismissed Williams’s Rule 59(e) and Rule 60(b) motions as successive

petitions because it was clear that the district court intended its order to

dispose of Williams’s petition on the merits. Id. at 1002. The court cited to and

discussed Bonin v. Calderon, 59 F.3d 815 (9th Cir. 1995), where the Ninth

Circuit refused to construe the petitioner’s motion to amend a habeas petition,

after the district court had denied the petition, as a Rule 15 motion merely

because the district court had failed to file a separate judgment. Agreeing with

this analysis, the Eighth Circuit in Williams refused to accept Williams’s

argument that his motion should be construed as a Rule 15 motion just

because a final judgment was inadvertently not filed.

Williams also argued that his motions were not successive because the

denial of his original petition was not yet affirmed on appeal. Williams, 461

F.3d at 1003. Relying on Davis v. Norris, 423 F.3d 868 (8th Cir. 2005), the

Eighth Circuit disagreed with Williams. Id.

Rhines argues that Williams erroneously relied on Davis, a 2005

decision, rather than the 2001 Nims decision, because Eighth Circuit precedent

directs a court to follow the earliest opinion when there is a conflict between

panel opinions. Docket 383 at 4-5 (quoting Mader v. United States, 654 F.3d

794, 800 (8th Cir. 2011) (en banc)). Notably missing from Rhines’s argument,

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however, is the Eighth Circuit’s discussion of the potential conflict between

Nims and Davis in Williams. The Williams court found Nims and Davis

reconcilable because the Nims court remanded the petition to the district court

in 1992, pre-AEDPA and with the expectation that “petitioner [would] be able to

later raise both his original and amended claims on appeal[,]” whereas Davis

was different “in that the petitioner’s request for a remand occurred after the

passage of AEDPA.” Williams, 461 F.3d at 1004. The Williams court’s

discussion of the distinctions between Nims and Davis leads this court to

conclude that there are not two conflicting panel decisions that are implicated

here. So Rhines’s argument that Nims, the earlier decision, is controlling,

rather than Williams and its reliance on Davis, is misplaced. Because Rhines’s

petition was filed post-AEDPA, Williams’s reliance on Davis, and the

subsequent decision to “reject Williams’s claim that an amendment to a

petition is not a successive habeas if it occurs after the petition is denied, but

before the denial is affirmed on appeal,” controls. Id. at 1004.

The other issue with Rhines’s argument is that Nims is distinguishable

from this case. In Nims, the Eighth Circuit panel remanded the petition to the

district court before Nims’s petition was heard on appeal because Nims

requested a remand. Nims, 251 F.3d at 700. And Nims requested the remand

pre-AEDPA, but his subsequent appeal was heard and adjudicated by the

Eighth Circuit post-AEDPA. Rhines’s petition, on the other hand, was

adjudicated by this court post-AEDPA, appealed to the Eighth Circuit postAEDPA, and there is no indication that Rhines has asked the Eighth Circuit to

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remand his petition to this court in order to amend the petition with his new

claim of juror bias. So even if Nims did stand “for the proposition that a new

claim cannot be deemed successive until the denial of the underlying petition

has been affirmed on appeal” just because the Nims panel adjudicated Nims’s

claim on the merits, as Rhines argues (Docket 383 at 5), Nims is factually

distinct from Rhines’s motion. Thus, Nims does not support Rhines’s position,

and, based on Williams, the court rejects Rhines’s argument that an

amendment filed in the district court while the appeal of his habeas petition is

pending is not a successive petition.

The court concludes that because it entered a final judgment in Rhines’s

case and the appeal of that final judgment is still pending, it does not retain

jurisdiction to allow Rhines to amend his habeas petition to add a new claim

under Fed. R. Civ. P. 15(a). Rather, based on Eighth Circuit case law, Rhines’s

motion to amend (Docket 383) is a successive petition. And because Rhines has

not received authorization from the Eighth Circuit to file a successive petition,

this court cannot adjudicate the merits of his motion under Rule 15.

II.

Rhines’s Rule 60(b) Motion

A.

Jurisdiction

Rhines argues that if the court finds it does not have jurisdiction to grant

his motion under Rule 15(a)(2), it should alternatively review the motion under

Rule 60(b)(6). Docket 383 at 5. Federal Rule of Civil Procedure 60(b) allows a

court to relieve a party from a final judgment, order, or proceeding for various

reasons, such as mistake, newly discovered evidence, or fraud, among others.

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Rule 60 includes a catchall provision, which allows the court to relieve a party

for “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). In order for a

court to grant a 60(b)(6) motion, the movant must show “extraordinary

circumstances” to justify relief, and “[s]uch circumstances will rarely occur in

the habeas context.” Buck v. Davis, 137 S. Ct. 759, 772 (2017) (quoting

Gonzalez v. Crosby, 545 U.S. 524, 535 (2005)). “A district court has discretion

under Rule 60(b) to grant postjudgment leave to file an amended complaint if

the motion is ‘made within a reasonable time,’ and the moving party shows

‘exceptional circumstances’ warranting ‘extraordinary relief.’ ” United States v.

Mask of Ka-Nefer-Nefer, 752 F.3d 737, 743 (8th Cir. 2014) (quoting Fed. R. Civ.

P. 60(c)(1); United States v. Young, 806 F.2d 805, 806 (8th Cir. 1986)).

What constitutes a reasonable time depends on the facts of the particular

case. Watkins v. Lundell, 169 F.3d 540, 544 (8th Cir. 1999). See Moses v.

Joyner, 815 F.3d 163, 166-67 (4th Cir. 2016) (concluding that the district court

did not abuse its discretion in ruling that a habeas petitioner’s Rule 60(b)(6)

motion for relief from judgment, based on a change in habeas procedural law

15 months after the Supreme Court’s decision, was untimely under Rule 60(c)).

While leave to amend under Rule 15(a) should be “freely given,” post-judgment

leave to amend under Rule 60(b) is subject to stricter standards. See Gonzalez,

545 U.S. at 535 (quoting Liljeberg v. Health Servs. Acquisition Corp., 486 U.S.

847, 873 (1988) (Rehnquist, C.J., dissenting)) (noting a “ ‘very strict

interpretation of Rule 60(b) is essential if the finality of judgments is to be

preserved’ ”).

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The Federal Rules of Civil Procedure also provide that if a court lacks

authority to grant a motion for relief from judgment because an appeal is

pending, “the court may: defer considering the motion; deny the motion; or

state either that it would grant the motion if the court of appeals remands for

that purpose or that the motion raises a substantial issue.” Fed. R. Civ. P.

62.1(a). Thus, although an appeal is pending, this court may rule on Rhines’s

Rule 60(b) motion consistent with Rule 62.1(a).

B.

Second or Successive Petition

The Supreme Court has acknowledged that Rule 60(b) motions in the

habeas context, while playing “an unquestionably valid role,” must not conflict

with AEDPA’s standards. Gonzalez, 545 U.S. at 533. “Using Rule 60(b) to

present new claims for relief from a state court’s judgment of conviction-even

claims couched in the language of a true Rule 60(b) motion-circumvents

AEDPA’s requirement that a new claim be dismissed unless it relies on either a

new rule of constitutional law or newly discovered facts.” Id. at 531 (citing 28

U.S.C. § 2244(b)(2)).

A Rule 60(b) motion is a second or successive habeas corpus

application if it contains a claim. For the purpose of determining

whether the motion is a habeas corpus application, claim is defined

as an ‘asserted federal basis for relief from a state court’s judgment

of conviction’ or as an attack on the ‘federal court’s previous

resolution of the claim on the merits.’ Gonzalez, 545 U.S. at 530,

532. ‘On the merits’ refers ‘to a determination that there exist or do

not exist grounds entitling a petitioner to habeas corpus relief under

28 U.S.C. §§ 2254(a) and (d).’ Id. at 532 n.4. When a Rule 60(b)

motion presents a claim, it must be treated as a second or successive

habeas petition under AEDPA.

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No claim is presented if the motion attacks ‘some defect in the

integrity of the federal habeas proceedings.’ Id. at 532. Likewise, a

motion does not attack a federal court’s determination on the merits

if it ‘merely asserts that a previous ruling which precluded a merits

determination was in error-for example, a denial for such reasons

as failure to exhaust, procedural default, or statute-of-limitations

bar.’ Id. at n.4.

Ward v. Norris, 577 F.3d 925, 933 (8th Cir. 2009). In Gonzalez, the Rule 60(b)

motion, which sought to challenge a statute of limitations ruling that had

prevented review of the petitioner’s initial habeas petition, did not require

authorization from the court of appeals. Gonzalez, 545 U.S. at 533, 538.

Here, Rhines argues his Rule 60(b)(6) motion is not a claim, and thus not

a successive petition, because he attacks a defect in the integrity of the federal

habeas proceeding. Docket 383 at 7. Specifically, he argues, “a rule of evidence,

now declared unconstitutional [by Pena-Rodriguez], precluded review” of his

claim of juror bias based on Rhines’s homosexuality, and thus, the Supreme

Court has removed an obstacle to a merits review of his claim. Id.

After considering Rhines’s Rule 60(b)(6) motion, the court concludes

Rhines’s is attempting to present a new claim, which means his motion is a

successive petition. Rhines is attempting to assert a claim of sexual orientation

bias by the jury based on the Supreme Court’s decision in Pena-Rodriguez. In

other words, Rhines is attempting to use a Supreme Court case, and extend

the holding of that case to the facts of his case, as a basis for relief from his

death penalty sentence in state court. Thus, Rhines’s new claim meets the very

definition of “claim” that was established in Gonzalez: “an asserted federal

basis for relief from a state court’s judgment of conviction[.]” Gonzalez, 545

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U.S. at 530; see also id. at 538 (“We hold that a Rule 60(b)(6) motion in a

§ 2254 case is not to be treated as a successive habeas petition if it does not

assert, or reassert, claims of error in the movant’s state conviction.”). Rhines is

doing exactly that—asserting a claim of error in his state conviction. Because

Rhines’s Rule 60(b)(6) motion is a successive petition and he did not seek or

obtain the Eighth Circuit’s authorization to file it, this court does not have

jurisdiction to consider it on the merits. See Burton v. Stewart, 549 U.S. 147,

152 (2007) (concluding that because petitioner filed a successive petition

without appellate authorization, “the [d]istrict [c]ourt never had jurisdiction to

consider it in the first place.”).

III.

Rhines’s Motion for Expert Access

Rhines also moves the court for an order requiring respondent to

produce Rhines for expert evaluations by Richard Dudley, Jr., M.D., a forensic

psychiatrist, and Dan Martell, Ph.D., a neuropsychologist. Docket 394. He

plans to use the advice of Dr. Dudley and Dr. Martell for a possible clemency

application, should one become necessary. Id. The Department of Corrections,

acting under SDCL § 23A-27A-31.1, will not allow the two experts to access

Rhines in prison without a court order. Id.

Rhines previously moved this court for a different doctor’s expert access

as part of his habeas proceeding. Docket 313. The court denied Rhines’s

motion because Rhines is in a state penitentiary, not a federal penitentiary,

and SDCL § 23A-27A-31.1 authorizes a state trial court—here, the Circuit

Court for the Seventh Judicial Circuit of South Dakota—to order the

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Department of Corrections staff to allow other persons not specified in the

statute access to capital inmates. Docket 334 at 6. Based on the principles of

comity and federalism, the court concluded SDCL § 23A-27A-31.1 did not

authorize the court to grant Rhines’s request. Id. at 7.

Rhines contends that he has now addressed the federalism concerns

because he has sought relief in the South Dakota courts, which have denied

his motion for expert access. Docket 394 at 4; see also Docket 394-1 (Circuit

Court for the Seventh Judicial Circuit of South Dakota denial of Rhines’s

motion, dated Oct. 24, 2017); Docket 394-2 (South Dakota Supreme Court

order dismissing Rhines’s appeal, dated Jan. 2, 2018). As a legal basis for his

motion, Rhines argues that this court’s appointment of counsel under 28

U.S.C. § 3599 extends representation to clemency proceedings, which may also

include expert services in support of such clemency proceedings. Docket 394 at

6. Rhines also argues he has a due process right to these expert services for his

possible clemency request. Id. at 12.

A.

Authorization for Representation under 18 U.S.C. § 3599

On Rhines’s first argument, 28 U.S.C. § 3599 provides in relevant part:

(a)(2) In any post conviction proceeding under section 2254 or 2255

of title 28, United States Code, seeking to vacate or set aside a death

sentence, any defendant who is or becomes financially unable to

obtain adequate representation or investigative, expert, or other

reasonably necessary services shall be entitled to the appointment

of one or more attorneys and the furnishing of such other services

in accordance with subsections (b) through (f).

....

(e) Unless replaced by similarly qualified counsel upon the attorney’s

own motion or upon motion of the defendant, each attorney so

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appointed shall represent the defendant throughout every

subsequent stage of . . . all available post-conviction process,

together with applications for stays of execution and other

appropriate motions and procedures, and shall also represent the

defendant in such competency proceedings and proceedings for

executive or other clemency as may be available to the defendant.

18 U.S.C. § 3599.

The Supreme Court has interpreted the phrase, “shall also represent the

defendant in such competency proceedings and proceedings for executive or

other clemency as may be available to the defendant” found in 18 U.S.C.

§ 3599. Harbison v. Bell, 556 U.S. 180, 185 (2009). The Court concluded that

the plain language of the statute provides that federally appointed counsel’s

authorized representation for a habeas petitioner includes state clemency

proceedings that are available to state petitioners. Id. at 185-86. In rejecting

the government’s argument that § 3599(e) refers only to federal clemency, the

Court reasoned:

To the contrary, the reference to “proceedings for executive or other

clemency, § 3599(e) (emphasis added), reveals that Congress

intended to include state clemency proceedings within the statute’s

reach. Federal clemency is exclusively executive: Only the President

has the power to grant clemency for offenses under federal law. U.S.

Const., Art. II, § 2, cl. 1. By contrast, the States administer clemency

in a variety of ways. . . . Congress’ reference to “other clemency” thus

does not refer to federal clemency but instead encompasses the

various forms of state clemency.

Id. at 186-87 (internal citations omitted).

The Supreme Court’s holding in Harbison does not mandate federally

funded counsel for a capital habeas petitioner to represent the petitioner in his

state clemency proceedings, it merely authorizes such representation. See

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Harbison, 556 U.S. at 194 (“We further hold that § 3599 authorizes federally

appointed counsel to represent their clients in state clemency proceedings and

entitles them to compensation for that representation.”). And authorizing a

federally appointed and funded counsel’s representation under § 3599 does not

give this court the authority to supervise or control a state’s clemency process.

Thus, 18 U.S.C. § 3599’s authorization for representation alone does not

require this court to order respondent to produce Rhines for an evaluation by

the two mental health experts in support of a clemency request.

B.

Due Process Right to Expert Services for Clemency

Rhines states that he has never received neuropsychological testing to

determine if he suffers from any brain disease or injury, and he has never been

evaluated by a psychiatrist who engaged in an independent background

investigation. Docket 394 at 13. Thus, he argues, it is his due process right to

be evaluated by Dr. Dudley and Dr. Martell in support of his “potential

clemency application.” Id. at 2, 12.

The Supreme Court has recognized that “[c]lemency is deeply rooted in

our Anglo-American tradition of law, and is the historic remedy for preventing

miscarriages of justice where judicial process has been exhausted.” Harbison,

556 U.S. at 192 (quoting Herrera v. Collins, 506 U.S. 390, 411-12 (1993)). And

as the Eighth Circuit has explained, “clemency is extended mainly as a matter

of grace, and the power to grant it is vested in the executive prerogative, [so] it

is a rare case that presents a successful due process challenge to clemency

procedures themselves.” Noel v. Norris, 336 F.3d 648, 649 (8th Cir. 2003) (per

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curiam). But in Ohio Adult Parole Authority v. Woodard, a divided Supreme

Court acknowledged that “some minimal procedural safeguards apply to

clemency proceedings.” 523 U.S. 272, 289 (1998) (O’Connor, J., concurring)

(plurality opinion) (emphasis in original).

Rhines has not presented the court with a case holding that a capital

habeas petitioner has a due process right to expert evaluations in support of a

potential clemency application. In Ake v. Oklahoma, 470 U.S. 68, 83 (1985),

which Rhines relies on, the Supreme Court held that a capital defendant has a

due process right to access a competent psychiatrist when the “defendant

demonstrates . . . his sanity at the time of the offense is to be a significant

factor at trial” so the psychiatrist can help the defendant prepare his defense.

Rhines, on the other hand, is potentially seeking clemency relief. He is not

preparing for trial, and his motion for expert access does not raise the issue of

insanity at the time of the offense.

The other cases Rhines cites, and the cases this court has reviewed, all

discuss the “minimal” due process rights afforded to petitioners in the act of

applying for clemency to the respective executive branch—not the preparation

leading to a possible application. See Lee v. Hutchinson, 854 F.3d 978, 981-82

(8th Cir. 2017) (per curiam) (denying capital inmates’ motion to stay executions

because the Arkansas Parole Board’s clemency process, “despite the procedural

shortcomings,” afforded the inmates the “minimal due process guaranteed by

the Fourteenth Amendment.”); Winfield v. Steele, 755 F.3d 629, 631 (8th Cir.

2014) (per curiam) (concluding that inmate failed to demonstrate “a significant

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possibility of success on his claim that the Missouri clemency process violated

his rights under the Due Process Clause” when he claimed correctional

employees threatened and pressured someone to not make statements in

support of the inmate’s clemency application); Young v. Hayes, 218 F.3d 850,

853 (8th Cir. 2000) (holding that a city attorney’s interference, in the form of

witness tampering, with the petitioner’s efforts to present evidence to the

Missouri Governor in his clemency application was “fundamentally unfair” and

required a stay of execution). But see Winfield, 755 F.3d at 631-32 (Gruender,

J., concurring) (maintaining that Young “lacks support in relevant Supreme

Court authority” and is an “outlier” compared to narrower approaches adopted

by other circuits). See also Turner v. Epps, 460 F. App’x 322, 330-31 (5th Cir.

2012) (concluding that capital prisoner’s motion for expert access to assist in

“laying a foundation for a request for clemency” did not violate his due process

right).

In fact, the Eighth Circuit has rejected a due process argument for

alleged interference with the ability to prepare for a clemency application. In

Noel v. Norris, 336 F.3d 648, 649 (8th Cir. 2003) (per curiam), a capital

prisoner in Arkansas claimed the State of Arkansas violated his due process

right by interfering “with his ability to prepare and present his case for

executive clemency.” The Eighth Circuit noted that “if the state actively

interferes with a prisoner’s access to the very system that it has itself

established for considering clemency petitions, due process is violated.” Id. One

argument Noel presented was that the state did not allow him to undergo a

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particular brain-scan procedure to prove his brain damage should be

considered in his clemency application. Id. But the Eighth Circuit rejected this

argument, stating “we cannot say . . . that the state prohibited Mr. Noel from

using the procedure that it had established.” Id.

Rhines presents a similar claim to Noel in that he wants to undergo

medical evaluations in order to prepare and present a clemency application.

But the prisoner in Noel had already applied for, and been denied, clemency.

Rhines, on the other hand, has construed his motion for expert access in his

habeas case as a due process requirement for his “potential” clemency

application. Unlike the cases discussed above where due process may be

implicated by clemency procedures, Rhines has not initiated his clemency

application. And he has not provided evidence that South Dakota has

“arbitrarily denied [him] access to its clemency process.” Woodard, 523 U.S. at

289 (O’Connor, J., concurring) (plurality opinion). No Eighth Circuit case,

South Dakota statute, or state or federal constitutional provision creates a due

process right to accumulate all information that may lead to a clemency

application, or to present a certain type of information in a clemency

application. See Turner, 460 F. App’x at 331 (noting the lack of “a due process

right to a more effective or compelling clemency application.”). Because Rhines

has not established a due process right to an expert evaluation in preparation

for a possible clemency application, his request for this court to order

respondent to produce Rhines for evaluations by Dr. Dudley and Dr. Martell is

denied.

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CONCLUSION

Rhines has appealed this court’s final judgment to the Eighth Circuit,

and that appeal is still pending. Thus, Rhines’s Rule 15(a)(2) motion to amend

is a successive petition, and Rhines has not received authorization to submit

the successive petition to the district court. If construed to be a Rule 60(b)(6)

motion, Rhine’s motion is also a successive petition. But again, because he has

not received authorization from the Eighth Circuit to file a successive petition

raising the new claim of juror bias based on his homosexuality, this court does

not have jurisdiction to rule on the merits of his motion. Finally, Rhines has

failed to show he has a due process right under the Constitution to an expert

evaluation in order to prepare for a potential clemency application to the South

Dakota Governor. Thus, it is

ORDERED that Rhines’s motion to amend, or in the alternative, motion

for relief from judgment (Docket 383) is denied.

IT IS FURTHER ORDERED that Rhines’s motion for expert access

(Docket 394) is denied.

DATED this 25th day of May, 2018.

BY THE COURT:

/s/ Karen E. Schreier

KAREN E. SCHREIER

UNITED STATES DISTRICT JUDGE

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