Opposition Brief — Charles Russell Rhines, Petitioner v. Darin Young, Warden

Supreme Court briefMar 13, 2019

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No. 18-8029

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In The

Supreme Court of the United States

OCTOBER TERM 2018

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CHARLES RUSSELL RHINES,

Petitioner

DARIN YOUNG, Warden, South Dakota State Penitentiary,

Respondent

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On Petition For A Writ Of Certiorari

To The United States Court of Appeals For The 8th Circuit

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BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI

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JASON R. RAVNSBORG, South Dakota Attorney General

PAUL S. SWEDLUND, Assistant Attorney General

Counsel of Record

OFFICE OF THE ATTORNEY GENERAL

STATE OF SOUTH DAKOTA

1302 East Highway 14, Suite 1

Pierre, SD 57501-8501

Telephone: 605-773-3215

Facsimile: 605-773-4106

paul.swedlund@state.sd.us

Attorneys for Respondent Young

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CAPITAL CASE – NO DATE OF EXECUTION SET

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QUESTIONS PRESENTED

Would reasonable jurists debate whether the district court abused its

discretion in denying Rhines’ motion to amend his petition for a writ of

habeas corpus when his claim was new, unexhausted, procedurally

defaulted, barred by state and federal statutes of limitations, beyond

the jurisdiction of the district court, and unable to meet the PenaRodriguez exception?

Though Rhines’ petition attempts to pose the question of whether he

has made a substantial showing of jury bias, that question is not before

this court because the district court never reached the merits of

Rhines’ jury bias claim. The only actionable question posed by Rhines’

petition is the procedural question above. But even on the merits,

reasonable jurists would not debate whether Rhines presented a valid

claim of jury bias when the claim is unexhausted, procedurally

defaulted, barred by both state and federal statutes of limitations, fails

to meet criteria for the filing of a successive petition or a PenaRodriguez claim and is supported by dubious evidence that has never

been subject to judicial review.

TABLE OF CONTENTS

SECTION

PAGE

STATEMENT OF THE CASE

ARGUMENT

1. There Is No Genuine Circuit Split Requiring This Court’s

Attention

2. Rhines’ Petition Is An Inappropriate Vehicle For Consideration

Of The Successive Petition Question Because Any Ruling

Would Be Merely Advisory Due To Incurable Procedural And

Substantive Defects In Rhines’ Jury Bias Claim

a. Rhines’ Extra-Record Evidence Of Alleged Jury Bias Is

Unreliable And Vigorously Disputed

b. A Ruling Extending Pena-Rodriguez To Homophobic Bias

Would Have No Practical Effect In This Case Because Rhines

Has Exhausted His State And Federal Appellate And Habeas

Corpus Remedies Without Ever Raising A Jury Homophobia

Claim

c. Even If Pena-Rodriguez Extends To Homophobic Bias And

Is Retroactive, Rhines’ Evidence Does Not Satisfy The

Exception

CONCLUSION

APPENDIX

Pertinent South Dakota Statutes

Appendix 001

Commonwealth v. Spotz, 99 A.3d 866 (Pa. 2014)

Appendix 009

Ballard Attorney Referral Article

Appendix 066

Habeas Corpus Transcript Excerpt

Appendix 068

Criminal Trial Transcript Excerpt

Appendix 074

Rhines “Reply To Last Word” Filing

Appendix 083

Rhines Pro Se Complaint

Appendix 091

United States District Court’s Rule 59(e) Ruling

Appendix 112

Tharpe v. Warden, CIV 10-433 (D.Ct.M.D.Ga. 2017)

Appendix 131

Cersosimo Journal

Appendix 155

Voir Dire Transcripts

Appendix 236

iii

TABLE OF AUTHORITIES

CASES CITED

PAGE

Amodeo v. United States, 743 Fed.Appx. 381 (11th Cir. 2018)

9, 15, 16

Beard v. Banks, 542 U.S. 406 (2004)

Beaty v. Schriro, 554 F.3d 780 (9th Cir. 2009)

Blystone v. Horn, 664 F.3d 397 (3rd Cir. 2011)

5, 8

Butler v. McKellar, 494 U.S. 407 (1990)

Candelario v. Warden, 592 Fed.Appx. 784 (11th Cir. 2014)

Commonwealth v. Spotz, 99 A.3d 866 (Pa. 2014)

10, 12, 13, 14, 31

Douglas v. Workman, 560 F.3d 1156 (10th Cir. 2009)

7, 8

Echols v. Ricci, 2011 WL 3678821 (D.Ct.N.J.)

Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017)

Graham v. Collins, 506 U.S. 461 (1993)

Gray v. Netherland, 518 U.S. 152 (1996)

Gideon v. Wainwright, 372 U.S. 335 (1963)

Gonzalez v. Crosby, 545 U.S. 524 (2005)

5, 6

Habozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996)

Holmes v. Cal. Army Nat’l Guard, 124 F.3d 1126 (9th Cir. 1997)

Howard v. United States, 533 F.3d 472 (6th Cir. 2008)

Hughbanks v. Dooley, 2016 S.D. 76, 887 N.W.2d 319

Irvin v. Dowd, 366 U.S. 717 (1961)

Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004)

Kiley v. American Soc. For Prevention of Cruelty to Animals,

296 Fed.Appx. 107 (2nd Cir. 2008)

Lambrix v. Singletary, 520 U.S. 518 (1997)

Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804

(11th Cir. 2004)

McDonald v. Pless, 238 U.S. 264 (1915)

McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548

(1984)

Montgomery v. Louisiana, 136 S.Ct. 718 (2016)

Moreland v. Robinson, 813 F.3d 315 (6th Cir. 2016)

8, 19

Ochoa v. Sirmons, 485 F.3d 538 (10th Cir. 2007)

Pena-Rodriguez v. Colorado, 137 S.Ct. 855 (2017)

3, passim

Phillips v. United States, 668 F.3d 433 (7th Cir. 2012)

Prowel v. Wise Business Forms, Inc., 579 F.3d 285 (3rd Cir. 2009)

Rhines v. Weber, 2000 SD 19, 608 N.W.2d 303

Rhines v. Young, CIV # 00-5020 (D.Ct.S.D.)

2, 17

2, 15, 22, 32

Robinson v. Wilson, 2001 WL 289884 (D.Ct.N.D.Ill.)

Romer v. Evans, 517 U.S. 620 (1996)

Saffle v. Parks, 494 U.S. 484 (1990)

Sawyer v. Smith, 497 U.S. 227 (1990)

23, 24, 28

Scarbrough v. Morgan County Bd. of Educ., 470 F.3d 250

(6th Cir. 2006)

Schriro v. Summerlin, 542 U.S. 348 (2004)

Sheppard v. Robinson, 807 F.3d 815 (6th Cir. 2015)

Smith v. Phillips, 455 U.S. 209 (1982)

20, 21

State v. Motzke, 2006 SD 13, 710 N.W.2d 433

20, 21, 22

State v. Rhines, 1996 SD 55, 548 N.W.2d 415

1, 2, 17

Teague v. Lane, 489 U.S. 288 (1989)

23, 24, 28

Tharpe v. Sellers, 138 S.Ct. 545 (2018)

13, 21, 29

Tharpe v. Warden, CIV # 10-433 (D.Ct.M.D.Ga. 2017)

21, 30

Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996)

United States v. Reid, 13 L.Ed. 1023 (1852)

United States v. Robinson, 2017 WL 4325019 (6th Cir. 2017)

United States v. Terrell, 141 Fed.Appx. 849 (11th Cir. 2005)

United States v. Winestock, 340 F.3d 200 (4th Cir. 2003)

Vickers v. Fairfield Medical Center, 453 F.3d 757 (6th Cir. 2006)

Whab v. United States, 408 F.3d 116 (2nd Cir. 2005)

6, 9

Whorton v. Bockting, 549 U.S. 406 (2007)

Williams v. Thaler, 602 F.3d 291, 302-13 (5th Circ. 2010)

Williams v. Norris, 461 F.3d 999, 1004 (8th Cir. 2006)

Young v. Davis, 860 F.3d 318 (5th Cir. 2017)

STATUTES CITED

28 U.S.C. § 2244

6, 8, 15, 16, 23

Fed.R.Civ.P. 15(a)

SDCL 15-6-59(e)

2, 3, 19

SDCL 15-6-60(b)/Fed.R.Civ.P. 60(b)

SDCL 19-19-606/Fed.R.Evid. 606

4, 5, 6, 8, 9, 19

20, 21, 22, 25, 26, 28, 30

SDCL 21-27-3.3

15, 17

SDCL 21-27-5.1

15, 22, 23

SDCL 23A-27-4.1

SDCL 23A-29-1

OTHER CITED AUTHORITIES

MEANS, 1 Postconviction Remedies § 18:1 (2016)

MEANS, Federal Habeas Manual: A Guide to Federal Habeas

Corpus Litigation, § 7:39 (2017)

23, 24

APPENDIX

Volume 1

Pertinent South Dakota Statutes

Appendix 001

Commonwealth v. Spotz, 99 A.3d 866 (Pa. 2014)

Appendix 009

Ballard Attorney Referral Article

Appendix 066

Habeas Corpus Transcript Excerpt

Appendix 068

Criminal Trial Transcript Excerpt

Appendix 074

Rhines “Reply To Last Word” Filing

Appendix 083

Rhines Pro Se Complaint

Appendix 091

United States District Court’s Rule 59(e) Ruling

Appendix 112

Tharpe v. Warden, CIV 10-433 (D.Ct.M.D.Ga. 2017)

Appendix 131

Cersosimo Journal

Appendix 155

Volume 2

Voir Dire Transcripts

Appendix 236

McGriff

Appendix 237

Blake

Appendix 262

D. Anderson

Appendix 278

Keeney

Appendix 303

Cersosimo

Appendix 321

Corrin

Appendix 338

Walton

Appendix 353

M. Anderson

Appendix 374

Woodson

Appendix 393

Dean

Appendix 409

Brown

Appendix 432

Shafer/Rohde

Appendix 458

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vii

STATEMENT OF THE CASE

Charles Russell Rhines was convicted of the March 8, 1992, murder of

22-year-old Donnivan Schaeffer. State v. Rhines, 1996 SD 55, ¶¶ 1-3, 548

N.W.2d 415, 424 (Rhines I ). That night, Donnivan entered the donut shop

where he worked after hours to retrieve supplies and caught Rhines

burglarizing and robbing the store. Rhines I, 1996 SD 55 at ¶ 158, 548

N.W.2d at 451. Rhines stabbed Donnivan in the abdomen and back.

Donnivan dropped to the floor, screaming and writhing in pain. Rhines I,

1996 SD 55 at ¶ 158, 548 N.W.2d at 451. Donnivan begged Rhines not to kill

him. Rhines I, 1996 SD 55 at ¶ 158, 548 N.W.2d at 451. Rhines walked

Donnivan to a dingy storeroom in the strip-mall donut shop and set him

down on a wooden pallet. Rhines I, 1996 SD 55 at ¶ 158, 548 N.W.2d at 451.

Rhines locked Donnivan’s head between his knees and pounded a hunting

knife into the base of Donnivan’s skull, partially severing his brain stem.

Rhines I, 1996 SD 55 at ¶ 158, 548 N.W.2d at 451.

Unaffected by the screams and blood and death, Rhines left the store

with his loot to get something to eat at “Perkins. Up on LaCrosse [Street].

Had an order of french fries.” Donnivan’s body was found later that evening

slumped forward on the pallet in a widening pool of his own blood, his hands

tied behind his back. Rhines I, 1996 SD 55 at ¶ 158, 548 N.W.2d at 451.

Donnivan Schaeffer lost his life so Rhines could make off with approximately

$1,700 in cash and coins. Rhines I, 1996 SD 55 at ¶ 2, 548 N.W.2d at 424.

The jury sentenced Rhines to death. Rhines I, 1996 SD 55 at ¶ 3, 548

N.W.2d at 424. The South Dakota Supreme Court affirmed the conviction

and sentence and the denial of Rhines’ first petition for habeas corpus.

Rhines I, 1996 SD 55 at ¶ 3, 548 N.W.2d at 424; Rhines v. Weber, 2000 SD 19,

608 N.W.2d 303 (Rhines II ).

Following lengthy federal post-conviction proceedings not relevant

here, Rhines filed a second state petition for habeas corpus challenging his

conviction, sentence and method of execution. The petition was denied.

Rhines then obtained federal habeas corpus review of the claims

denied in his first and second state habeas corpus petitions. The United

States District Court for the District of South Dakota denied the petition in

February of 2016. Rhines then filed a Fed.R.Civ.P. 59(e) motion to amend

the judgment alleging a new claim that jurors had sentenced him to death

because of his homosexuality. RULE 59(e) MOTION, Docket 323, Rhines v.

Young, CIV # 00-5020 (D.Ct.S.D.).

The district court denied the motion to amend because “Rhines [ha]d

not raise[d] previously his juror bias claim in any state or federal proceeding.”

ORDER DENYING MOTION TO AMEND, Docket 348, Respondent’s

Appendix at 117. The district court ruled that Rhines’ motion was, in

substance, a successive petition and that “Rhines [could] not use Rule 59(e) to

circumvent [restrictions on successive petitions in 28 U.S.C.] § 2244(b) and

Pinholster.” ORDER DENYING MOTION TO AMEND, Docket 348,

Respondent’s Appendix at 120.

Rhines filed a notice of appeal, but did not appeal the district court’s

denial of his Rule 59(e) motion as it related to his claim of jury bias.

Rhines was appointed new lawyers from the “Pennsylvania Federal

Community Defender Office” (PFCDO). The PFCDO sought to revive the

jury bias issues raised and lost in Rhines’ Rule 59(e) motion by filing a

Fed.R.Civ.P. 15(a)(2)/60(b)(6) motion to vacate the judgment denying his

petition so that Rhines could amend his petition to add a new claim of jury

bias. Rhines claimed to have “newly discovered” evidence of jury bias based

on PFCDO interviews of jurors conducted in December of 2016. These “new”

affidavits simply rehashed allegations of jury bias raised by Rhines’ previous

counsels’ interviews of jurors in September 2015. Rhines’ motion argued that

the racial exception to the no-impeachment rule recently announced in PenaRodriguez v. Colorado, 137 S.Ct. 855 (2017), applied to sexual orientation

bias.

The district court denied the motion because it had no jurisdiction to

hear or rule on it. Citing the fact that the case was then on appeal to the

circuit court, the district court ruled that its judgment was final. SECOND

ORDER DENYING MOTION TO AMEND, Docket 399, Rhines Appendix at

9, 10. Consequently, the court had no “jurisdiction to allow Rhines to amend

his habeas petition to add a new claim under Rule 15(a). Rather, based on

Eighth Circuit case law, Rhines’ motion to amend (Docket 383) is a successive

petition. And because Rhines ha[d] not received authorization from the

Eighth Circuit to file a successive petition, [the district court could] not

adjudicate the merits of his motion.” SECOND ORDER DENYING MOTION

TO AMEND, Docket 399, Rhines Appendix at 16.

Rhines requested a certificate from both the district and circuit courts

for leave to appeal the denial of his motion to vacate/amend. Both courts

denied the request. Rhines now petitions for a writ of certiorari from the

denial of a certificate to appeal the finding that his Rule 60(b) motion was a

successive petition.

ARGUMENT

This court should deny Rhines’ petition because (1) there is no genuine

circuit split requiring this court’s attention and (2) Rhines’ petition is an

inappropriate vehicle for addressing any of the “questions” presented because his

jury bias claim is unexhausted, procedurally defaulted, barred by both state and

federal statutes of limitations, fails to meet the criteria for filing a successive

petition or a Pena-Rodriguez claim, and is supported by dubious evidence that

has never been subject to judicial review. Due to these incurable procedural and

substantive defects, any ruling finding that Rhines’ Rule 60(b) motion was not a

successive petition would be advisory and futile.

1. There Is No Genuine Circuit Split Requiring This Court’s Attention

According to Rhines, the circuit courts are split on the questions of what

constitutes a second or successive petition and when a judgment becomes final

for purposes of making a subsequent claim second or successive. There is no

genuine circuit split requiring this court’s attention.

With regard to the first question, Gonzalez v. Crosby, 545 U.S. 524, 529,

530 (2005), ruled that a Rule 60(b) motion “is in substance a successive habeas

petition and should be treated accordingly” if it “seeks to add a new ground for

relief” that “assert[s a] federal basis for relief from a state court’s judgment of

conviction.” The district court found that Rhines’ “new [jury bias] claim meets

the very definition of ‘claim’ that was established in Gonzalez.” SECOND

ORDER DENYING MOTION TO AMEND, Docket 399, Rhines Appendix at 19.

The district court found that “Rhines [wa]s doing exactly that – asserting a claim

of error in his state conviction. Because Rhines’ Rule 60(b)(6) motion is a

successive petition and he did not seek or obtain the Eighth Circuit’s

authorization to file it, [the district court did] not have jurisdiction to entertain it

on the merits.” SECOND ORDER DENYING MOTION TO AMEND, Docket

399, Rhines Appendix at 20.

The court in Blystone v. Horn, 664 F.3d 397, 413 (3rd Cir. 2011), observed

that “Gonzalez clearly delineated when ‘a Rule 60(b) motion should be treated

like a habeas corpus application.’” In Sheppard v. Robinson, 807 F.3d 815, 819

(6th Cir. 2015), the court had no trouble distilling Gonzalez’s definition into a

cogent analytical framework for determining if a Rule 60(b) motion is a

successive petition. Thus, there is no confusion among the circuit courts over

where “to draw the line between an initial federal habeas petition and a ‘second

or successive’ one.” Circuit courts all agree that a claim such as Rhines’ – i.e.

one that is new and asserts a federal basis for relief from the state court’s

judgment of his sentence – is a successive petition per Gonzalez.

With regard to the second question, Rhines asserts that the 2nd and 10th

Circuits have split with the 3rd, 4th, 5th, 6th, 7th, 8th, 9th and 11th Circuits over the

question of when a judgment is final for purposes of 28 U.S.C. §§ 2244(b)(3)(A).

A closer examination of Rhines’ cited cases reveals that there is no genuine split

over this question.

Rhines’ assertion that the 2nd Circuit has split from other circuits relies on

an outdated case predating Gonzalez. In finding a motion to amend to not be a

successive petition, Whab v. United States, 408 F.3d 116, 119 (2nd Cir. 2005),

decided one month before Gonzalez, reasoned that “the purpose of [not treating a

motion to amend as a successive petition if filed while a petition was still on

appeal] was to allow the petitioner the benefit of the more flexible standards of

Federal Rule of Civil Procedure 15, rather than the ‘more stringent standards’ of

AEDPA’s rule of ‘second or successive’ petitions.” Gonzalez expressly rejected

Whab’s reasoning, stating that a motion to amend cannot be used to

“circumvent” the AEDPA’s successive petition restrictions. Gonzalez, 545 U.S. at

532.

While Rhines’ lone post-Gonzalez case, Douglas v. Workman, 560 F.3d

1156 (10th Cir. 2009), did not treat a motion to amend as a successive petition, its

reason for doing so was not because the underlying judgment denying the

petition was not “final.” To the contrary, the Douglas court stated that it “would

not ordinarily permit a habeas petitioner to supplement his habeas petition in

this way where, as here, his first habeas petition was already pending before this

court on appeal from the denial of relief.” Douglas, 560 F.3d at 1189. The

Douglas court made an exception because the prosecutor had actively and

improperly concealed the information necessary for Douglas to bring his Brady

claim. Douglas, 560 F.3d at 1192 (“treat[ing] Douglas’ Brady claim as a second

or successive request for habeas relief . . . would be to allow the government to

profit from its own egregious conduct”).

Rhines has no similar claim to equity. No prosecutor prevented Rhines

from developing the factual predicate for his jury bias claim. Also in Douglas,

the Brady error raised by the proposed amendment was embodied within the

generalized prosecutorial errors complained of in the original petition. Here,

however, Rhines’ claim of jury bias is not embodied within his claims that the

trial court erred in failing to appoint a “communications expert” or responding to

the jury’s note about the conditions of Rhines’ confinement. And unlike Douglas,

“here any delay, inefficiency, or waste of judicial resources stems [not] from the

prosecution” but Rhines himself. ORDER DENYING MOTION TO AMEND,

Docket 348, Respondent’s Appendix at 119 (finding lack of diligence in

presenting jury bias claim). And unlike in Douglas, Rhines’ delay “does . . .

implicate the concerns underlying Congress’ enactment of AEDPA’s severe

restrictions on granting a habeas petitioner relief on second or successive

petitions.” Douglas, 560 F.3d at 1195.

Douglas’ reasoning, in combination with the court’s earlier decision in

Ochoa v. Sirmons, 485 F.3d 538, 540 (10th Cir. 2007), squarely aligns the 10 th

Circuit with post-Gonzalez authorities that have uniformly held that “if the

district court has already adjudicated the petition and entered judgment, any

new petition challenging the same judgment may be treated as a second or

successive petition governed by 28 U.S.C.A. § 2244(b).” MEANS, 1 Postconviction

Remedies § 18:1 at 536 (2016); Blystone, 664 F.3d at 413; United States v.

Winestock, 340 F.3d 200, 203-07 n.1 (4th Cir. 2003); Williams v. Thaler, 602 F.3d

291, 302-13 (5th Circ. 2010); Moreland v. Robinson, 813 F.3d 315, 326 (6th Cir.

2016)(“Rule 60(b) motion . . . that seeks to raise habeas claims is a second or

successive petition [if] filed after the petitioner has appealed”); Phillips v. United

States, 668 F.3d 433, 435 (7th Cir. 2012)(determining that Rule 60(b) motion filed

while defendant’s 28 U.S.C. § 2255 motion to vacate was pending on appeal

constituted a new application for collateral relief subject to second or successive

petition restrictions); Williams v. Norris, 461 F.3d 999, 1004 (8th Cir. 2006);

Beaty v. Schriro, 554 F.3d 780, 783 n.1 (9th Cir. 2009); United States v. Terrell,

141 Fed.Appx. 849, 852 (11th Cir. 2005).

Because the 2nd Circuit’s Whab decision predates Gonazalez, and the 10th

Circuit is squarely aligned with the post-Gonzalez jurisprudence of every other

circuit, there is no “circuit split” requiring this court’s attention.

2. Rhines’ Petition Is An Inappropriate Vehicle For Consideration Of

The Successive Petition Question Because Any Ruling Would Be

Merely Advisory Due To Incurable Procedural And Substantive

Defects In Rhines’ Jury Bias Claim

Rhines raised this identical Pena-Rodriguez claim last year in a petition

for a writ of certiorari to the South Dakota Supreme Court in Rhines v. South

Dakota, No. 17-8791. This court denied that petition. This court can deny

Rhines’ current petition as well because it is as unsuitable a vehicle for exploring

the expansion of Pena-Rodriguez as his earlier petition.

Rhines’ jury bias claim does not meet criteria for the filing of a successive

petition. Even if it did, and Rhines were given leave to file a successive petition,

it would be subject to immediate dismissal because the claim is unexhausted,

procedurally defaulted and barred by both state and federal statutes of

limitations. And even if Rhines’ jury bias claims were not barred six ways to

Sunday, his proffered jury bias evidence does not satisfy the criteria of the PenaRodriguez exception. Thus, any ruling that Rhines’ Rule 60(b) motion was not a

successive petition, or extending Pena-Rodriguez to sexual orientation, would be

merely advisory and futile. Amodeo v. United States, 743 Fed.Appx. 381, 385-86

(11th Cir. 2018)(ruling finding motion not a successive petition would have been

futile because time for amending petition had passed).

c. Rhines’ Extra-Record Evidence Of Alleged Jury Bias Is

Unreliable And Vigorously Disputed

Rhines’ jury bias affidavits are inherently unreliable because they were

procured by PFCDO attorneys without any judicial oversight. The PFCDO are

not real federal attorneys employed by the federal government and accountable

to a local federal judicial authority like the South Dakota Federal Public

Defender Office. They pose as “feds” but the PFCDO is, essentially, a private

law firm that contracts with the Administrative Office of the United States

Courts to serve as appointed counsel to indigent federal defendants through

grant funding and private contributions. It functions as a private, boutique,

anti-death penalty law firm but, consequentially, without the economic

constraints that generally preclude private law firms from pursuing fabricated

or frivolous claims because its clients – death row inmates – are not paying for

the hours the PFCDO bills.

As detailed in Commonwealth v. Spotz, 99 A.3d 866 (Pa. 2014), the

PFCDO has exploited its private status – outside of the type of judicial oversight

that generally restrains real federal public defenders from making frivolous

claims or economic constraints that inhibit regular private practice attorneys

from churning a file – “to impede the death penalty to indulge its private

political viewpoint,” by means that are “simply unethical and improper.” Spotz,

99 A.3d at 904, 920, Respondent’s Appendix at 009.

Here, the PFCDO procured the subject affidavits by ambushing jurors at

their homes and “harass[ing]” them about their verdict, specifically asking if

they had “changed” their minds or if they would vote “differently” if they were

informed that the PFCDO had information that a pejorative term about

homosexuals had been uttered by a fellow juror during deliberations – as though

the PFCDO had inside information about the deliberations unknown to the

jurors who were there. GARLAND AFFIDAVIT at ¶¶ 5, 42, Rhines Appendix at

77, 82. The PFCDO was “rude as hell,” subjecting the jurors to “a lot of bad

language” while “badgering” them to agree to PFCDO-fabricated falsehoods that

a juror had referred to Rhines as a “fucking queer” or “faggot” during

deliberations. GARLAND AFFIDAVIT at ¶¶ 35, 37, 47, Rhines Appendix at 81,

82.

In reality, every juror contacted by the South Dakota Division of Criminal

Investigation (DCI) stated consistently and unequivocally that Rhines’

homosexuality had absolutely no bearing on their decision to impose a death

sentence. GARLAND AFFIDAVIT, Rhines Appendix at 77; GARLAND

SUPPLEMENTAL AFFIDAVIT, Rhines Appendix at 84. Juror Cersosimo

informed DCI that one juror made a joke that Rhines might like being locked in

prison with other men. This “stab at humor” “did not go over well” with the jury

and every juror agreed that Rhines’ sexual orientation “was not even a

consideration” and had nothing to do with their verdict. The juror who made the

joke immediately admitted that it was “stupid” and “dumb” to say such a thing

and “that was the end of it.” No other comments like that were made and

Rhines’ sexual orientation was not discussed again. GARLAND AFFIDAVIT at

¶ 24, Rhines Appendix at 80. The jurors uniformly report not only that the

deliberations were conducted in an “extremely professional” manner but also

that Rhines’ homosexuality had “[n]ot one iota” of influence on the decision to

impose a death sentence. GARLAND AFFIDAVIT at ¶¶ 3, 26, 38, 42, 44, 46,

Rhines Appendix at 77, 80, 81, 82.

The PFCDO’s assaultive tactics and scurrilous insinuations are no

surprise considering the scathing indictment of its ethics practices (or lack

thereof) in death penalty cases reported in the Spotz opinion. Spotz describes in

detail the PFCDO’s reputation for having an anti-death penalty “agenda beyond

mere zealous representation, one which routinely pushes, and in frequent

instances . . . far exceeds ethical boundaries.” Spotz, 99 A.3d at 867,

Respondent’s Appendix at 009. One can practically turn to any random page of

the Spotz decision and find judicial condemnation of the PFCDO’s “contempt” for

the courts, “lack of candor,” “scurrilous” tactics, “contemptuous” conduct,

“dubious” and “ethically questionable” behavior, “pervasive conduct in causing

delay,” “obstructionist agenda,” penchant for “accusing Pennsylvania courts of

incompetence or laziness, their argument unencumbered by concerns for

accuracy, honest, and candor,” “abuses in briefing,” “war on its ethical duty of

candor to the court,” “extreme conduct and/or misconduct,” and “strategy to

subvert the proper role of state courts” that is “simply unethical and improper.”

Spotz, 99 A.3d at 867, 871, 872, 875, 876 881, 883, 893, 896, 897, 898 n.21, 899,

900, 901, 902, 903, 911, 915, 920, passim, Respondent’s Appendix at 009.

Indeed, this very court referred one PFCDO operative to state disciplinary

authorities for his role in a PFCDO scheme to file an unauthorized petition for

writ of certiorari in a death penalty case. REFERRAL ARTICLE, Respondent’s

Appendix at 066; Spotz, 99 A.3d at 877, 913 n. 25, Respondent’s Appendix at

009, 056.

Because of its extreme tactics, the PFCDO’s affidavits are inherently

unreliable. Here, as in Tharpe v. Sellers, 138 S.Ct. 545 (2018), there is a

significant discrepancy between what the jurors allegedly said to PFCDO

lawyers and investigators and what they have said to others. As in Tharpe,

there is evidence here that the jurors were confronted in their homes by PFCDO

lawyers who were “sneaky” about their purpose. SUPPLEMENTAL GARLAND

AFFIDAVIT at ¶ 12, Rhines Appendix at 85. In Tharpe, defense investigators

interviewed a juror while he was drunk on a 12-pack of beer and several shots of

whiskey; here the PFCDO procured an affidavit from Juror Keeney, whose wife

describes him as having problems with memory and dementia. Not surprisingly,

the PFCDO neglected to mention Keeney’s condition, which can only mean they

knowingly exploited it in procuring his “affidavit” and wished to conceal it.

SUPPLEMENTAL GARLAND AFFIDAVIT at ¶ 9, Rhines Appendix at 85. In

Tharpe, the juror never signed or swore to his “affidavit;” here the PFCDO is

similarly attempting to pass off unsworn and unsigned “statements” of Juror

Blake written and signed by a PFCDO investigator as a “juror affidavit.”

BLAKE “AFFIDAVIT,” Rhines Appendix at 35.

The PFCDO mendaciously asserts that the jurors have not “retracted” the

statements attributed to them by the PFCDO, a self-serving choice of verb that

assumes the jurors made the alleged statements in the first place, or made them

with the meaning the PFCDO draws from them. Blake has said that the

PFCDO’s assertions are “Not true.” SUPPLEMENTAL GARLAND AFFIDAVIT

at ¶ 6, Rhines Appendix at 85. There is nothing for Cersosimo to “retract.”

When asked if he voted for a death sentence because Rhines is gay, Keeney

adamantly said “No, no, no. No I didn’t do that.” SUPPLEMENTAL GARLAND

AFFIDAVIT at ¶ 15, Rhines Appendix at 86. Keeney’s statement certainly

repudiates the homophobic inference that the PFCDO draws from the

prepositional phrase (inserted by the PFCDO itself ) “with men” within Keeney’s

otherwise generic statement that he believed that Rhines should not have been

allowed to spend his life in prison. The PFCDO shamelessly exploited Keeney’s

condition by phrasing his affidavit to give it import and meaning that was not

intended or understood by Keeney.

Accordingly, the veracity of any affidavits procured unilaterally by the

PFCDO, an organization notorious for its disregard of ethical constraints and

“lack of candor,” is vigorously disputed. Spotz, 99 A.3d at 898 n. 21, 902.

d. A Ruling Extending Pena-Rodriguez To Homophobic Bias

Would Have No Practical Effect In This Case Because Rhines

Has Exhausted His State And Federal Appellate And Habeas

Corpus Remedies Without Ever Raising A Jury Homophobia

Claim

Even were this court to rule that Pena-Rodriguez broadly covers sexual

orientation bias, it would have no practical effect because Rhines has no

remaining process by which to avail himself of such a ruling. Rhines has

exhausted his state appellate and habeas corpus processes and is presently

barred from bringing a successive habeas corpus petition under state law

because:

•

He is beyond the South Dakota 2-year and federal 1-year statutes of

limitations. SDCL 21-27-3.3; 28 U.S.C. § 2244(d)(1); and

•

He cannot satisfy state criteria for a successive petition because (a) the

factual predicate of his jury bias claim is not “new” and (b) his claim

does not arise from a new, retroactive constitutional rule. SDCL 2127-5.1.

Any ruling from this court that Rhines’ motion to vacate/amend was not a

successive petition would be futile because the claim is incurably

unexhausted, procedurally defaulted and time barred in state and federal

court. Amodeo, 743 Fed.Appx. at 385-86 (ruling finding motion not a

successive petition would have been futile because time for amending petition

had passed).

i. Rhines’ Jury Bias Claim Is Time Barred

Rhines’ jury bias claim is time-barred by SDCL 21-27-3.3’s two-year and

28 U.S.C. 2244(d)(1)’s one-year statutes of limitations. Rhines filed two

affidavits under seal in the United States District Court for the District of South

Dakota which purport to evidence homophobic bias. JUROR B and JUROR J

AFFIDAVITS, Docket 323 (Attachments 2 and 10), Rhines v. Young, CIV # 005020 (D.Ct.S.D.). Those affidavits reflect that jurors had been interviewed

about an alleged homophobic comment in September 2015 but Rhines did not

move to amend his complaint before the end of September 2016 as required by

28 U.S.C. 2244(d)(1). Amodeo, 743 Fed.Appx. at 385-86 (motion to amend must

be made within one year).

Rhines’ knowledge of the factual predicate of his jury bias claim goes back

even further than September 2015. Indeed, Rhines started asserting “jury bias”

practically before the ink was dry on the verdict form 25 years ago. Rhines’ legal

team, in consultation with Rhines himself, decided to utilize his sexual

orientation in mitigation by portraying Rhines as a lost soul marginalized by

society’s ostracization of homosexuals. HABEAS CORPUS TRANSCRIPT at

12/2-9, 92/19-22, 176/5-13, Respondent’s Appendix at 068; TRIAL TRANSCRIPT

at 2614/5, 2616/25, 2617/3, Respondent’s Appendix at 074. Defense counsel laid

the ground for this strategy by conducting pointed voir dire regarding each

prospective juror’s attitude about homosexuality. Wayne Gilbert, one of Rhines’

trial attorneys, testified in the state habeas corpus proceedings that he “viewed

the voir dire questioning as a way to weed out potential jurors who might be

hostile to Rhines because of his sexuality.” HABEAS CORPUS TRANSCRIPT at

115, 156-157, Respondent’s Appendix at 068. All jurors, including those now the

target of Rhines’ allegations of homophobia, agreed that his sexual orientation

had no bearing on the case. VOIR DIRE TRANSCRIPTS, Respondent’s Appendix

at 236.

Nevertheless, Rhines argued on direct appeal that the trial court erred by

refusing to appoint a forensic communications expert because he believed “voir

dire alone [had been] an inadequate method for detecting and eliminating jurors

with biases against homosexuality.” Rhines also argued that a jury note to the

judge inquiring into conditions of confinement for those serving life in prison

“reflected homophobic sentiments that improperly affected jury deliberations.”

Rhines I, 1996 SD 55 at ¶ 105, 548 N.W.2d at 442. The South Dakota Supreme

Court rejected Rhines’ contentions that “the jury considered irrelevant or

unfairly prejudicial matters when imposing the death penalty” or that the jury’s

questions “related to . . . Rhines’ sexual orientation.” Rhines I, 1996 SD at ¶ 170

n. 6, 548 N.W.2d at 443. Rhines did not further develop a claim of jury bias for

his first (or second) state habeas corpus petition(s). Rhines II, 2000 SD 19, 608

N.W. 2d 303.

Rhines’ knowledge of the predicate facts of his jury bias claim is deeper

still. In a pro se complaint filed in state court on September 5, 2017, challenging

the constitutionality of SDCL 21-27-3.3, Rhines stated that:

During the plaintiff’s [Rhines’] 24-year appeals process he has

repeatedly attempted to urge his appointed counsels to interview

the plaintiff’s criminal trial jurors about a nine (9) question note

they sent to the trial court judge during penalty phase

deliberations. These questions ranged from the plaintiff’s future

dangerousness if he were ever placed in a minimum security

prison or be allowed work release to what conditions of

confinement the plaintiff could expect to incur if the [plaintiff] had

been sentenced to life in prison rather than death, to whether or

not the plaintiff would be allowed to have a cell-mate or associate

with other inmates. During voir dire the jurors were informed

that the plaintiff is a homosexual and each potential juror

indicated this would play no part in their deliberations. However,

the list of questions sent to the trial court judge during penalty

phase deliberations seems to counterindicate those statements by

these jurors and, subsequently the plaintiff urged each of his

appointed counsels to interview these jurors about what they had

meant with the 9 questions. During the nearly 23 ensuing years

after trial and through 16 or so appointed counsels, none would

interview the jury, until 2015 when counsel from outside the area

was appointed by the Honorable Karen E. Schreier as Learned

Counsel for the Plaintiff’s federal habeas petition. In September

2015 Learned Counsel Carol R. Camp and investigator Mary K.

Poirer began interviewing former jurors and discovered that

apparently most of them had viewed the oaths they took in voir

dire as merely a suggestion and the promise not to use the

Plaintiff’s homosexuality against him as being null and void.

REPLY TO “LAST WORD,” Respondent’s Appendix at 088-089 (emphasis

added).

Because Rhines was aware of the factual predicate for his jury bias claim

at the time of the jury’s sentencing deliberations, he had until July 1, 2014, to

file a successive state habeas corpus alleging jury bias. Hughbanks v. Dooley,

2016 SD 76, ¶ 16, 887 N.W.2d 319, 324. He did not. Even if the factual

predicate for a jury bias claim had not been known to Rhines until September

2015 or December 2016, he did not timely file a successive state petition before

the end of September 2017 or December 2018 or move to amend his pending

federal petition before the expiration of the federal one-year statute at the end of

September 2016. Howard v. United States, 533 F.3d 472, 475 (6th Cir.

2008)(claim raised in motion to amend subject to federal one-year statute of

limitations). A ruling finding that Rhines’ jury bias claim is not a successive

petition would be futile because it is incurably unexhausted, procedurally

defaulted and time-barred.

ii. Rhines’ Jury Bias Claim Does Not Satisfy The New

Evidence And New, Retroactive Constitutional Rule

Criteria For A Successive Petition

Since Rhines’ own words and the record as a whole establish that he was

aware of the factual predicate of his jury bias claim as long as 25 years ago but

no later than September 2015, he cannot satisfy the “newly discovered evidence”

criterion for a successive petition.

Indeed, in denying the identical jury bias claim Rhines raised in his Rule

59(e) motion, the district court observed that “Rhines ha[d] had roughly twenty

years to develop the evidence he now offers. In fact, Rhines faults each of his

attorneys for not developing this evidence sooner. But Rhines’ allegations

undermine the foundation of his motion. For Rhines to prevail, he must show

that this evidence could not have been discovered earlier despite having

exercised reasonable diligence to obtain it. Rhines, however, asserts that the

evidence should have been discovered earlier if his attorneys were diligent.

Rhines’ contention is the inverse of what Rule 60(b)(2) is designed to address.

He makes no showing that he had been unable to uncover the newly discovered

evidence prior to the court’s summary judgment ruling. Likewise, the decadeslong period of delay while the evidence was obtainable indicates a lack of

diligence. Because this evidence was available to Rhines, it should have been

presented prior to the entry of judgment.” ORDER DENYING MOTION TO

AMEND, Docket 348, Respondent’s Appendix at 120; Moreland, 813 F.3d at 326

(“accusing counsel of ineffectiveness in not presenting . . . claims in trial-level

state post-conviction proceedings . . . is necessarily acknowledging that, with due

diligence, the evidence in support could have been presented then”).

To the extent Rhines argues that Rule 606 was an insurmountable

obstacle to developing jury bias evidence, he exaggerates . . . and Pena-Rodriguez

itself is the proof. Rule 606 prohibits only the introduction of juror testimony or

affidavits for the purpose of “an inquiry into the validity of a verdict.” Rule 606

has never prohibited the introduction of juror testimony or affidavits for the

purpose of challenging the constitutionality of the rule itself. The fact that

Pena-Rodriguez succeeded in doing so in regard to racial bias proves that this

avenue of exploring homophobic bias required no “change in the law.” Unlike

Pena-Rodriguez, Rhines did not timely challenge the constitutionality of Rule

606 as a means of investigating and exposing alleged jury bias against him.

Per Smith v. Phillips, 455 U.S. 209, 215 (1982), “the remedy for

allegations of juror partiality is a hearing in which the defendant has the

opportunity to prove actual bias.” According to Smith:

The safeguards of juror impartiality, such as voir dire and protective

instructions from the trial judge, are not infallible; it is virtually

impossible to shield jurors from every contact or influence that might

theoretically affect their vote. Due process means a jury capable and

willing to decide the case solely on the evidence before it, and a trial

judge ever watchful to prevent prejudicial occurrences and to determine

the effect of such occurrences when they happen.

Smith, 455 U.S. at 217, 230. State statutes offer Smith avenues for relief.

S.D.R.Evid. 606 (SDCL 19-19-606) has never completely foreclosed attacking a

jury’s verdict on the grounds of “extreme . . . passion or prejudice,” including by

means of juror affidavits. State v. Motzke, 2006 SD 13, ¶ 14, 710 N.W.2d 433,

439. Like Pena-Rodriguez, Rhines could have sought relief from his state

criminal judgment by filing:

•

A motion for a new trial per SDCL 23A-29-1 within 10 days of the entry

of judgment on the grounds of “irregularity in the proceedings of the . . .

jury,” “[m]isconduct by the jury,” and “newly-discovered evidence,”

Smith and McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548,

556 (1984); or

•

A motion for relief from judgment per SDCL 23A-27-4.1 within one year

of the judgment.

Rhines did not file either motion, though the jury note so central to Rhines’ jury

bias claim was known to him even before his sentence was delivered. If the note

caused Rhines to genuinely doubt the jury’s sincerity1 or impartiality he could

have conducted a post-trial investigation into the jury’s alleged partiality per

Motzke and McDonough and filed a motion for a new trial or for relief from

judgment, or mounted a facial attack on Rule 606 itself. Pena-Rodriguez, 137

S.Ct. at 862. And though Tharpe shows that habeas corpus courts have,

notwithstanding Rule 606, taken juror testimony on racial bias in capital cases,

unlike Tharpe, Rhines did not develop his jury bias claim in either his first or

Prospective jurors are presumed to be impartial and the answers they give in

voir dire truthful. Irvin v. Dowd, 366 U.S. 717, 723 (1961).

second state habeas corpus proceedings. Tharpe v. Warden, CIV # 10-433

(D.Ct.M.D.Ga. 2017)(unpublished), Respondent’s Appendix at 133, 145, 146.

Rhines is now well beyond his window for any form of relief, making any

application of Pena-Rodriguez to sexual orientation bias in this case merely

advisory.

Rhines asserts that Pena-Rodriguez’s exception is a “new” constitutional

rule that allows him to bring a successive petition per SDCL 21-27-5.1. But

Pena-Rodriguez itself takes pains to point out that its exception is not exactly

new, observing that “the Reid and McDonald cases [had] noted the possibility of

an exception to the [no-impeachment] rule [for] the ‘gravest and most important

cases.’” United States v. Reid, 13 L.Ed. 1023 (1852); McDonald v. Pless, 238 U.S.

264 (1915). If, as Rhines contends, imposition of a death sentence (allegedly) on

the ground of a defendant’s sexual orientation violates “the plainest principles of

justice,” McDonald postulated a general exception for such occasions over 100

years ago. McDonald, 238 U.S. at 268; Motzke, 2006 SD 13 at ¶ 14, 710 N.W.2d

at 439 (SDCL 19-19-606 does not foreclose attack on jury verdict in instances of

“extreme . . . passion or prejudice”).

Indeed, nothing proves that no “new” rule was needed to mount an

impeachment challenge quite like the fact that Rhines’ counsel were out

drumming up juror affidavits two years before this court even issued the PenaRodriguez decision. JUROR B AFFIDAVIT at ¶ 14 and JUROR J AFFIDAVIT at

¶ 10, Docket 323 (Attachments 2 and 10), Rhines v. Young, CIV # 00-5020

(D.Ct.S.D.). Since Pena-Rodriguez did not create a new exception for sexual

orientation, and since the general exceptions of Reid, McDonald and Motzke

were “previously available” to Rhines for the purpose of impeaching his sentence

on the grounds of alleged homosexual bias, Rhines cannot meet the “new

constitutional rule” criterion for a successive petition of either SDCL 21-27-5.1 or

28 U.S.C.A. § 2244(b).

Even assuming Pena-Rodriguez created a “new” constitutional rule as

applied to Rhines, this court would have to assume or decide that it has

retroactive effect for Rhines to meet the criteria for a successive petition under

SDCL 21-27-5.1 and 28 U.S.C.A. § 2244(b). Otherwise, any ruling in this case

would be merely advisory.

The test for determining retroactivity is set forth in Teague v. Lane, 489

U.S. 288 (1989). As described in Montgomery v. Louisiana, 136 S.Ct. 718, 728

(2016):

First, courts must give retroactive effect to new substantive rules of

constitutional law. Substantive rules include “rules forbidding

criminal punishment of certain primary conduct,” as well as “rules

prohibiting a certain category of punishment for a class of defendants

because of their status or offense” . . . Second, courts, must give

retroactive effect to new “watershed rules of criminal procedure”

implicating the fundamental fairness and accuracy of the criminal

proceedings.

“Such a rule must be one ‘without which the likelihood of an accurate conviction

is seriously diminished.’” Teague, 489 U.S. at 313. A “watershed” rule must not

just improve the accuracy of a trial, it must function as an “absolute prerequisite

to fundamental fairness.” Teague, 489 U.S. at 313; Sawyer v. Smith, 497 U.S.

227, 243 (1990); MEANS, Federal Habeas Manual: A Guide to Federal Habeas

Corpus Litigation, § 7:39 (2017)(a watershed “rule must itself constitute a

previously unrecognized bedrock procedural element that is essential to the

fairness of a proceeding”).

To underscore the rarity of “watershed” rules, this court has invoked the

sweeping rule of Gideon v. Wainwright, 372 U.S. 335 (1963), as the

“paradigmatic example” of the “primacy and centrality” a new rule must have to

concepts of procedural fairness and accuracy in order to qualify as “watershed.”

Gray v. Netherland, 518 U.S. 152, 170 (1996); MEANS, Federal Habeas at § 7:39.

This court has repeatedly remarked that it is “unlikely” for many rules with the

“primacy and centrality” of Gideon to emerge from a criminal justice system

already so well ordered around concepts of due process and fairness as

America’s. MEANS, Federal Habeas at § 7:39. The “watershed” exception is,

thus, so “extremely narrow” that in the years since Teague this court has

repeatedly rejected claims of new rules meeting the exception even in capital

cases.2 MEANS, Federal Habeas at § 7:39.

Pena-Rodriguez does not meet the “watershed rule” exception per the

language and reasoning of the Pena-Rodriguez decision itself:

2 Beard v. Banks, 542 U.S. 406 (2004)(declining to find Mills rule re: jury

instructions in capital cases a “watershed” rule); Schriro v. Summerlin, 542 U.S.

348 (2004)(declining to find Ring/Apprendi rule “watershed”); Lambrix v.

Singletary, 520 U.S. 518 (1997); Gray v. Netherland, 518 U.S. 152, 170 (1996);

Graham v. Collins, 506 U.S. 461 (1993); Sawyer v. Smith, 497 U.S. 227 (1990);

Saffle v. Parks, 494 U.S. 484 (1990); Butler v. McKellar, 494 U.S. 407 (1990); see

also Whorton v. Bockting, 549 U.S. 406 (2007)(declining to find Crawford rule a

“watershed” rule in child sexual assault case).

a. In Pena-Rodriguez, a defendant was tried on a charge of sexual assault.

During deliberations a juror stated that he believed the defendant was

guilty “because he’s Mexican.” Pena-Rodriguez, 137 S.Ct. at 862. The

juror told other jurors that, from his experience as a police officer, the

“sense of entitlement” he had observed in Mexican men was behind their

being physically controlling of and aggressive toward women and young

girls. The juror also stated that he believed the defendant’s alibi witness

was not credible because he was “an illegal,” i.e. Mexican. With the court’s

supervision, Pena-Rodriguez obtained affidavits from other jurors

describing these statements. Pena-Rodriguez, 137 S.Ct. at 861. The

record revealed that in voir dire Pena-Rodriguez’s counsel had asked only

“generic questions about juror impartiality” without asking any specific

questions regarding any juror’s attitude about race generally or Mexicans

in particular. Pena-Rodriguez, 137 S.Ct. at 861, 869.

b. This court “granted certiorari to decide whether there is a constitutional

exception to [Rule 606] for instances of racial bias.” Pena-Rodriguez, 137

S.Ct. at 863. Pena-Rodriguez began by examining the history of many

“stark and unapologetic” examples of “race-motivated outcomes” in jury

cases in the United States. Pena-Rodriguez, 137 S.Ct. at 867. Despite the

country’s aspirations to “purge racial prejudice from the administration of

justice” – dating at least from amendments to the constitution in the wake

of the Civil War – the court found that “race-motivated outcomes” of trials

were a “recurring evil” that “implicate[d] unique historical, constitutional

and institutional concerns.”

c. From the “distinct” role race has historically played in thwarting

aspirations of equality in America,3 Pena-Rodriguez fashioned a narrow

exception to Rule 606 for admission of “clear and explicit statements

indicating that racial animus was a significant motivating factor” in the

jury’s verdict. Pena-Rodriguez, 137 S.Ct. at 861.

The express limitation of the Pena-Rodriguez exception to the “distinct”

issue of race in and of itself proves that it is no “watershed” rule of any

application here:

a. Sexual orientation is not immutable to the same extent as race or gender.

A black or Mexican defendant’s race is immutable to the eyes of a jury

while Rhines could have tried his defense without the jury knowing of his

homosexuality.

b. Sexual orientation does not implicate the same “unique historical,

constitutional and institutional concerns” as race. American history is not

replete with “stark and unapologetic” anti-homosexual jury verdicts. No

3 See Young v. Davis, 860 F.3d 318, 333 (5th Cir. 2017)(“The [Supreme] Court’s

emphasis on our long struggle against racial prejudice, and the ‘constitutional

and institutional concerns’ attending that history, evince its constrained

relaxing of the traditionally inviolate [no-impeachment] rule.”); United States v.

Robinson, 2017 WL 4325019, *6-7 (6th Cir. 2017)(refusing to extend PenaRodriguez to racial comments made by jury foreperson to two African-American

jurors who initially had doubts regarding defendant’s guilt).

civil war has been fought over it. No nationwide pogrom has been

perpetrated for the enslavement, eradication or extreme persecution of

homosexuals. Homosexuals have not served as scapegoats for pressing

socio-economic problems with consequences felt by the population at large

– such as loss of jobs or rising incidents of street crime. No politician has

ever proposed constructing a wall to keep homosexuals out of the country.

The acceptance of equality in regard to non-racial distinctions has

occurred largely peaceably and with comparatively greatly less conflict.

Pena-Rodriguez’s premise that race has played a “unique” role in social

upheaval and violence in the nation’s history is corroborated by the fact

that sexual orientation is not afforded the heightened protections

extended to race in the nation’s civil rights laws. For example,

employment discrimination based on sexual orientation is not actionable

under Title VII of the Civil Rights Act. Evans v. Georgia Regional

Hospital, 850 F.3d 1248, 1255 (11th Cir. 2017).4 And, unlike race,

classifications based on sexual orientation are not subject to strict

scrutiny. Romer v. Evans, 517 U.S. 620, 631-33 (1996)(applying rational

See also Prowel v. Wise Business Forms, Inc., 579 F.3d 285, 293 (3rd Cir.

2009)(claim for sexual orientation discrimination is not cognizable under Title

VII); Kiley v. American Soc. For Prevention of Cruelty to Animals, 296 Fed.Appx.

107 (2nd Cir. 2008)(discrimination based on sexual orientation is not prohibited

by Title VII); Vickers v. Fairfield Medical Center, 453 F.3d 757, 762 (6th Cir.

2006)(“sexual orientation is not a prohibited basis for discriminatory acts under

Title VII”).

basis not strict scrutiny to law alleged to discriminate on basis of sexual

orientation).5

d. The Pena-Rodriguez court was hardly oblivious to other potential forms of

improper bias in jury deliberations. The decision was expressly cognizant

that “[a]ll forms of improper bias pose challenges to the trial process,” but

it singled out race and race alone for the “added precaution” of a Rule 606

exception. Pena-Rodriguez, 137 S.Ct. at 869. A broader exception

addressed to “[a]ll forms of improper bias” would have necessitated a

declaration that Rule 606 is wholly unconstitutional, something PenaRodriguez did not do.

e. Having expressly declined to fashion an exception for “[a]ll forms of

improper bias,” Pena-Rodriguez is not a “watershed” ruling as applied to

Rhines. By singling out race, the Pena-Rodriguez court implicitly

recognized that a similar exception in regard to other “forms of improper

bias” is not an “absolute prerequisite to fundamental fairness” in our

system of justice or a rule “without which the likelihood of an accurate

5 See also Scarbrough v. Morgan County Bd. of Educ., 470 F.3d 250, 261 (6th

Cir. 2006)(noting homosexuality is not suspect classification); Johnson v.

Johnson, 385 F.3d 503, 532 (5th Cir. 2004)(noting that neither the Supreme

Court nor the circuit has recognize sexual orientation as a suspect class);

Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804, 818 n. 16

(11th Cir. 2004)(noting that all circuits that have addressed issue have held

homosexuals are not a suspect class); Holmes v. Cal. Army Nat’l Guard, 124

F.3d 1126, 1132 (9th Cir. 1997)(homosexuals are not a suspect class); Habozny

v. Podlesny, 92 F.3d 446, 458 (7th Cir. 1996)(noting that in the military

context the Seventh Circuit has subjected homosexual discrimination to

rational basis scrutiny); Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir.

1996)(holding homosexual military personnel are not a suspect class).

conviction is seriously diminished.” Teague, 489 U.S. at 313; Sawyer, 497

U.S. at 243.

Consistent with these observations, “no reasonable jurist could argue that PenaRodriguez applies retroactively on collateral review.” Tharpe, 138 S.Ct. at 551.

(Thomas dissenting).

Finally, even if Pena-Rodriguez is a watershed rule as to race, an

argument for extending it to sexual orientation does not satisfy the criterion of a

“new constitutional rule” for a successive petition. A successive petition “cannot

be used as a vehicle to create constitutional rules of criminal procedure not

dictated by existing precedent.” Robinson v. Wilson, 2001 WL 289884

(D.Ct.N.D.Ill.); Candelario v. Warden, 592 Fed.Appx. 784 (11th Cir. 2014); Echols

v. Ricci, 2011 WL 3678821, *33-34 (D.Ct.N.J.)(“clearly established” Supreme

Court law for purposes of habeas corpus review is the holding of a case rather

than an extension of the case to analogous circumstances that may follow from

the reasoning of an opinion).

c. Even If Pena-Rodriguez Extends To Homophobic Bias And Is

Retroactive, Rhines’ Evidence Does Not Satisfy The Exception

Even if Pena-Rodriguez did apply to claims of alleged homosexual bias,

Rhines’ proffered evidence does not satisfy the exception.

a. Unlike in Pena-Rodriguez, voir dire in Rhines’ case went beyond generic

questions about impartiality to include specific questions regarding any

potential juror’s homosexual bias. VOIR DIRE TRANSCRIPTS,

Respondent’s Appendix at 236. The fact that all jurors specifically

responded that they would not hold Rhines’ homosexuality against him

significantly decreases the potential that it was a significant motivating

factor in their deliberations. VOIR DIRE TRANSCRIPTS, Respondent’s

Appendix at 236.

b. Pena-Rodriguez requires “clear and explicit statements indicating that

racial animus was a significant motivating factor” in the jury’s verdict.

Pena-Rodriguez, 137 S.Ct. at 861. Unlike in Pena-Rodriguez, the alleged

juror comments here are not clear and explicit expressions of animus

toward homosexuals. At best, they fall into the category of an “offhand

comment” that one might expect to hear in a case where Rhines’

homosexuality was proffered by his defense as a mitigating circumstance.6

Pena-Rodriguez, 137 S.Ct. at 869 (not every “offhand comment indicating

racial bias” will justify exception to Rule 606).

c. Unlike in Pena-Rodriguez and Tharpe, the PFCDO’s questioning of the

jurors was not conducted “with the court’s supervision” or “in the presence

of the court.” Pena Rodriguez, 137 S.Ct. at 861; Tharpe v. Warden, CIV 10-

6 Arguably, one finds proof that Rhines’ counsel succeeded in empaneling a jury

that was not phased by, or even convinced of, Rhines’ homosexuality in the jury’s

question to the judge asking whether Rhines would be “allowed to marry or have

conjugal visits” if sentenced to life. What jury conceived of gay marriage in

1992? The jurors’ question inherently suggests that they did not believe Rhines’

homosexual mitigation narrative if they were concerned that he might marry

and have conjugal visits with a woman. And the fact that the jurors asked about

Rhines’ access to conjugal visits with visitors from outside the prison walls also

belies Rhines’ assertion that they believed prison would afford him a harem of

male sexual companions.

433 (D.Ct.M.D.Ga. 2017)(unpublished), Respondent’s Appendix at 133,

145, 146. This left the PFCDO free to ambush, harass and badger jurors,

engage in suggestive interview techniques, put words in the jurors’

mouths, lay a guilt trip on them for imposing a death sentence, insinuate

a scheme by which jurors could change their minds by following the

PFCDO’s lead, engage in selective reporting and presentation and

generally subvert the proper administration of justice in all the ways for

which the PFCDO is famous. Spotz, 99 A.3d at 867, passim, Respondent’s

Appendix at 009. The Cersosimo and Keeney affidavits were selfevidently not written out by the affiants themselves. SUPPLEMENTAL

GARLAND AFFIDAVIT at ¶ 13, Rhines Appendix at 86. There are

obvious differences in the handwriting in the heading and body of the

affidavits and the handwriting of the signatures at the bottom of the page

– particularly Keeney’s shaky signature and the straight, precise

handwriting in the heading and body of the affidavit. Use of the lawyer

acronym for life without parole (LWOP) in the body of the Cersosimo

affidavit proves that it was written by a PFCDO interviewer. Not

phrasing the affidavits in the jurors’ own words allowed the PFCDO to

lace the affidavits with loaded words they could later spin with

homophobic meaning not intended by the affiants, e.g. insertion of the

prepositional phrase “with men” into Keeney’s affidavit or failing to report

that Cersosimo characterized the comment about Rhines being with men

in prison as a “stab at humor” that was roundly condemned by the other

jurors and promptly recanted by the juror who said it. It is noteworthy

that when Cersosimo was interviewed by the PFCDO’s predecessor

counsel in 2015 and 2016, the resulting affidavit contained no statements

of a homophobic nature whereas the PFCDO’s later affidavit does, starkly

exposing how the PFCDO is putting words in juror’s mouths and spinning

their meaning into a false narrative of homophobia. Compare JUROR N

(Cersosimo) AFFIDAVIT, Docket 340 (Attachment 2), Rhines v. Young,

CIV # 00-5020 (D.Ct.S.D.) with CERSOSIMO AFFIDAVIT, Rhines

Appendix at 34. The Blake “affidavit” is not even signed by Blake. The

absence of court supervision of the PFCDO’s methods of questioning as

occurred in Pena-Rodriguez and Tharpe, and the obvious selectivity and

spin brought to what the PFCDO reports, renders the affidavits anything

but clear and explicit expressions of animus against homosexuals.

d. This is especially true in the case of Juror Keeney, who suffers from

memory impairments and dementia. SUPPLEMENTAL GARLAND

AFFIDAVIT at ¶ 9, Rhines Appendix at 85. Both Keeney and Blake deny

the words the PFCDO has put into their mouths, and the bias the PFCDO

ascribes to their thoughts. The PFCDO clearly did not actually talk to

Bennett Blake or they would have singled out a different juror to accuse of

homophobic bias than one who is a lifelong democrat, whose deceased

brother was gay and who grew belligerent when he believed that the DCI

investigator was suggesting he was anti-gay (when it was actually the

PFCDO making the suggestion). VOIR DIRE TRANSCRIPTS,

Respondent’s Appendix at 264; SUPPLEMENTAL GARLAND

AFFIDAVIT at ¶ 6, Rhines Appendix at 86. Affidavits procured

unilaterally by the PFCDO, an organization notorious for its disregard of

ethical constraints and “lack of candor,” are anything but clear and

explicit expressions of homosexual bias.

e. Even if taken at face value, Rhines’ affidavits are conspicuously devoid of

any evidence that the alleged statements were “a significant motivating

factor” in his sentence. Pena-Rodriguez, 137 S.Ct. at 869. Juror

Cersosimo kept a daily journal of the deliberations and it does not reflect

that Rhines’ sexual orientation played any role in the deliberations.

CERSOSIMO JOURNAL, Respondent’s Appendix at 155. Whereas PenaRodriguez demonstrated that at least one juror voted to find him guilty

“because he’s Mexican,” no such causal evidence has been proffered in

Rhines’ affidavits. Rhines’ affidavits do not reflect that the jurors were

asked if they or anyone else voted for a death sentence “because” Rhines is

a homosexual – probably because Rhines knows full well the answer is no.

Rather than ask the operative question, Rhines expects this court simply

to infer motive from some alleged offhand comment(s) unreliably reported

by the PFCDO. Pena-Rodriguez requires more than lawyerly insinuation

for proof of significant motivation; it requires “clear and explicit” evidence,

which is lacking.

CONCLUSION

Rhines’ petition is not a suitable vehicle for addressing any of the

questions it presents. The PFCDO is petitioning for an advisory and futile

ruling.

Janet Keeney spoke for the entire jury in calling Rhines’ claim of

homophobic bias a “bunch of nonsense.” SUPPLEMENTAL GARLAND

AFFIDAVIT at ¶ 10, Rhines Appendix at 85. Juror Cersosimo’s journal describes

the work of a conscientious jury appreciative of the gravity of their decision.

CERSOSIMO JOURNAL at 000030, 000044, 000052, Respondent’s Appendix at

155. She describes a jury sophisticated enough to agree that the emotions of

Donnivan Schaeffer’s or Rhines’ family for death or life would not drive the

sentencing determination. CERSOSIMO JOURNAL at 000067, Respondent’s

Appendix at 155. She describes a jury whose sentencing determination was

instead driven by a concern to deliver “justice for Donnivan” and the need “to

remember all the rights and dreams he had that Rhines so selfishly took from

him.” CERSOSIMO JOURNAL at 000067, Respondent’s Appendix at 155. She

describes a jury sophisticated enough to agree that none of them would speak to

the press because “a few words could not begin to describe the magnitude of

[their] experience” as jurors. CERSOSIMO JOURNAL at 000069, Respondent’s

Appendix at 155. She describes a jury animated by the principle that “No one

should die the way Donnivan did.” CERSOSIMO JOURNAL at 000054,

Respondent’s Appendix at 155. She describes a jury moved by rehearing the

tape of Rhines’ bloodcurdling confession, with his “jarring laughter” while

comparing young Donnivan’s death spasms to a beheaded chicken running

around a barnyard, from an 8-4 split in favor of death to unanimous in the

decision. CERSOSIMO JOURNAL at 000066-67, Respondent’s Appendix at 155;

CERSOSIMO AFFIDAVIT, Rhines Appendix at 34; GARLAND AFFIDAVIT at ¶

48, Rhines Appendix at 83 (Juror Rohde describing how Rhines laughed because

stabbing Donnivan in the base of his skull did not kill him right away like he

thought it would). She describes a jury focused on all the right and humane

concerns of a jury charged with such a consequential decision. Since Cersosimo

was so clearly committed to not judging Rhines based on his homosexuality, one

would expect her journal to faithfully document any overt homophobia or

homophobic undercurrent in the jury’s deliberations. But no mention of juror

homophobia of any kind is found in Cersosimo’s journal. Despite the slanders of

the jury fabricated by Rhines’ overzealous lawyers, Cersosimo’s journal is

contemporaneous proof, unadulterated by PFCDO scheming, that the jury

judged him for what he did, not who he is.

Rhines has now eluded justice for longer than he allowed Donnivan

Schaeffer to live his life; there is no justice in further delaying the imposition of

Rhines’ deserved death sentence. Rhines’ petition for writ of certiorari should be

summarily and unceremoniously DENIED.

Dated this 13th day of March 2019.

Respectfully submitted,

JASON R. RAVNSBORG

ATTORNEY GENERAL

Paul_S._Swedlund____________

Paul S. Swedlund

Assistant Attorney General

1302 East Highway 14, Suite 1

Pierre, South Dakota 57501-8501

Telephone: 605-773-3215

Facsimile: 605-773-4106

paul.swedlund@state.sd.us

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on this 13th day of March 2019 a copy

of the foregoing response to petition for writ of certiorari was served on Claudia Van

Wyk, 601 Walnut Street, Suite 545 West, Philadelphia, PA 19106 and Timothy J.

Langley, Assistant Federal Public Defender, 200 West 10th Street, Suite 200, Sioux

Falls, SD 57104 via U.S. Mail first class prepaid.

Paul_S._Swedlund____________

Paul S. Swedlund

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