Petition for Writ of Certiorari — Charles Russell Rhines, Petitioner v. Darin Young, Warden
Supreme Court briefNov 1, 2019
Ask Donna
What actually matters in this document.
Text
CASE NO. ________ (CAPITAL CASE)
IN THE SUPREME COURT OF THE UNITED STATES
____________________________________________________________
CHARLES RUSSELL RHINES,
Petitioner,
v.
DARIN YOUNG, WARDEN, SOUTH DAKOTA STATE PENITENTIARY,
Respondent.
____________________________________________________________
On Petition for a Writ of Certiorari to
The United States Court of Appeals for the Eighth Circuit
________________________________________________________________
APPENDIX
________________________________________________________________
Jason J. Tupman
Acting Federal Public 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: November 1, 2019
TABLE OF CONTENTS
1.
United States Court of Appeals for the Eighth
Circuit Opinion (Oct. 25, 2019)...............................................................App. 001
2.
United States Court of Appeals for the Eighth
Circuit Judgment (Oct. 25, 2019) ...........................................................App. 004
3.
United States Court of Appeals for the Eighth
Circuit Mandate (Oct. 25, 2019) .............................................................App. 005
4.
Motion for Expert Access (Feb. 7, 2018) .................................................App. 006
5.
Petitioner’s Amended Motion for Expert Access
To Conduct Evaluation (Mar. 9, 2016) ...................................................App. 036
6.
United States District Court, Western Division
of South Dakota, Memorandum and Order (Apr. 12, 2016) ..................App. 049
7.
United States Court of Appeals for the Eighth
Circuit Opinion (Aug. 3, 2018) ................................................................App. 061
8.
Notice of Appeal (June 21, 2018) ............................................................App. 116
9.
United States Court of Appeals for the Eighth
Circuit Order (Sept. 7, 2018) ..................................................................App. 119
10.
United States Court of Appeals for the Eighth
Circuit Order (Sept. 18, 2018) ................................................................App. 120
11.
United States Court of Appeals for the Eighth
Circuit En Banc Order (Oct. 1, 2018) .....................................................App. 121
12.
Order Appointing Counsel (Dec. 10, 2009) ............................................App. 122
13.
Order Appointing Counsel (July 29, 2016) ............................................App. 123
14.
Supreme Court of the United States
Certiorari Denial (Dkt. No. 18-8029) (Apr. 15, 2019) ............................App. 124
15.
Supreme Court of the United States
Certiorari Denial (Dkt. No. 18-8030) (Apr. 15, 2019) ............................App. 126
16.
Notice of Parole Hearing Results (Dec. 12, 2018) ..................................App. 128
i
17.
Clemency Application Cover Letter (Nov. 9, 2018) ...............................App. 129
18.
Warrant of Execution (June 25, 2019) ...................................................App. 131
ii
United States Court of Appeals
For the Eighth Circuit
___________________________
No. 18-2376
___________________________
Charles Russell Rhines
lllllllllllllllllllllPetitioner - Appellant
v.
Darin Young, Warden, South Dakota State Penitentiary
lllllllllllllllllllllRespondent - Appellee
-----------------------------American Civil Liberties Union; American Civil Liberties Union of South Dakota;
GLBTQ Legal Advocates and Defenders; Lambda Legal Defense and Education
Fund; National Center for Lesbian Rights; National LGBT Bar
lllllllllllllllllllllAmici on Behalf of Appellant
____________
Appeal from United States District Court
for the District of South Dakota - Rapid City
____________
Submitted: September 26, 2019
Filed: October 25, 2019
[Published]
____________
Before LOKEN, GRUENDER, and KELLY, Circuit Judges.
____________
Appellate Case: 18-2376
Page: 1
Date Filed: 10/25/2019 Entry ID: 4845951
App. 001
PER CURIAM.
Charles Russell Rhines is an inmate at the South Dakota State Penitentiary,
sentenced to death for the March 1992 murder of Donnivan Schaeffer at a donut shop
in Rapid City, South Dakota. Rhines has exhausted all direct appeals and applications
for state and federal post-conviction relief. See Rhines v. Young, 899 F.3d 482 (8th
Cir. 2018). As briefed to this court in the fall of 2018 and argued to our panel in
September, this appeal raises the question whether the district court erred in
concluding that it has no authority under 18 U.S.C. § 3599 and the All Writs Act, 18
U.S.C. § 1651(a), to order South Dakota prison officials “to allow Rhines to meet
with mental health experts retained by appointed counsel for purposes of preparing
a clemency application.”
Following oral argument, a majority of the panel tentatively concluded that we
should affirm the district court. However, circumstances underlying the issue have
changed, and we conclude that a decision on this narrow issue is no longer needed.
We were advised by counsel for appellee earlier this year (i) that the South Dakota
Board of Pardons and Paroles denied Rhines’s petition for clemency in December
2018, and (ii) that the Circuit Court for the 7th Judicial Circuit of South Dakota has
issued a warrant for Rhines’s execution during the week of November 3-9, 2019.
Whether Rhines deserves clemency is now properly in the hands of the Governor.
South Dakota law grants the Governor broad constitutional and statutory
clemency authority. See Doe v. Nelson, 680 N.W.2d 302, 313 (S.D. 2004). Rhines
has begun the statutory process under S.D.C.L. § 24-14. The Governor may consider
any and all evidence she deems necessary to make her final decision, including the
absence of relevant expert evaluations and tests. The Supreme Court has cautioned
that, while “some minimal procedural safeguards apply to clemency proceedings,”
judicial intervention in state clemency proceedings is warranted only in rare, extreme
cases. Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 289 (1998) (O’Connor,
-2-
Appellate Case: 18-2376
Page: 2
Date Filed: 10/25/2019 Entry ID: 4845951
App. 002
J., concurring in part and concurring in the judgment). At the present time, with
South Dakota clemency proceedings commenced and the time for granting or denying
imminent, the issues raised by Rhines in this appeal are either moot or have not been
fully exhausted. Accordingly, we dismiss the appeal.
KELLY, Circuit Judge, concurring.
The question presented to us in this case was whether a federal court has the
authority to compel the State of South Dakota to allow Rhines access to mental health
experts retained by his appointed counsel for purposes of preparing a clemency
application. Based on the record before us, however, it appears that Rhines has not
fully exhausted his clemency-based remedies.
The South Dakota constitution grants the Governor the pardon power, S. D.
Const. art. IV, § 3, but the state’s statutory scheme permits the Governor to delegate
to the Board of Pardons and Paroles the authority to hear such applications. See Doe,
680 N.W.2d at 313 (South Dakota has a “two-pronged pardon system: a pardon
granted by the Governor with input from the Board . . . or a pardon granted solely by
the Governor with no outside involvement . . . .”). The parties have informed us that
in December 2018 the Board declined to recommend Rhines for clemency. Thus, as
the court notes, whether Rhines is deserving of clemency is now properly in the hands
of the Governor.
The parties have identified no impediments to Rhines’s asking the Governor
to allow him access to his mental health experts, either in the course of considering
the Board’s failure to recommend clemency or in connection with a clemency request
made directly to the Governor. It thus appears that Rhines still has an opportunity to
seek and obtain relief by means of the State’s statutory and/or constitutional
framework. For this reason, I concur in the court’s judgment.
______________________________
-3-
Appellate Case: 18-2376
Page: 3
Date Filed: 10/25/2019 Entry ID: 4845951
App. 003
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
___________________
No: 18-2376
___________________
Charles Russell Rhines
Petitioner - Appellant
v.
Darin Young, Warden, South Dakota State Penitentiary
Respondent - Appellee
-----------------------------American Civil Liberties Union; American Civil Liberties Union of South Dakota; GLBTQ
Legal Advocates and Defenders; Lambda Legal Defense and Education Fund; National Center
for Lesbian Rights; National LGBT Bar
Amici on Behalf of Appellant(s)
______________________________________________________________________________
Appeal from U.S. District Court for the District of South Dakota - Rapid City
(5:00-cv-05020-KES)
______________________________________________________________________________
JUDGMENT
Before LOKEN, GRUENDER, and KELLY, Circuit Judges.
This appeal from the United States District Court was submitted on the record of the
district court, briefs of the parties and was argued by counsel.
After consideration, it is hereby ordered and adjudged that the appeal is dismissed in
accordance with the opinion of this Court.
October 25, 2019
Order Entered in Accordance with Opinion:
Clerk, U.S. Court of Appeals, Eighth Circuit.
____________________________________
/s/ Michael E. Gans
Appellate Case: 18-2376
Page: 1
Date Filed: 10/25/2019 Entry ID: 4845956
App. 004
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No: 18-2376
Charles Russell Rhines
Appellant
v.
Darrin Young, Warden, South Dakota State Penitentiary
Appellee
-----------------------------American Civil Liberties Union, et al.
Amici on Behalf of Appellant(s)
______________________________________________________________________________
Appeal from U.S. District Court for the District of South Dakota - Rapid City
(5:00-cv-05020-KES)
______________________________________________________________________________
MANDATE
In accordance with the opinion and judgment of 10/25/2019, and pursuant to the
provisions of Federal Rule of Appellate Procedure 41(a), the formal mandate is hereby issued in
the above-styled matter.
October 25, 2019
Clerk, U.S. Court of Appeals, Eighth Circuit
Appellate Case: 18-2376
Page: 1
Date Filed: 10/25/2019 Entry ID: 4845959
App. 005
Case 5:00-cv-05020-KES Document 394 Filed 02/07/18 Page 1 of 15 PageID #: 6630
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CHARLES RUSSELL RHINES,
Petitioner,
v.
Darin Young, Warden,
South Dakota State Penitentiary,
Respondent.
)
)
)
)
)
)
)
)
)
)
CIV. 5:00-5020-KES
MOTION FOR EXPERT ACCESS
Charles Rhines moves this Court for an order requiring the Warden to
produce Mr. Rhines for expert evaluations in support of a potential request for
executive clemency. Mr. Rhines states the following in support of his motion:
1.
Mr. Rhines is incarcerated at the South Dakota State
Penitentiary under sentence of death.
2.
On December 10, 2009, this Court appointed the Federal Public
Defender for the Districts of South Dakota and North Dakota (“FPD”) to represent
Mr. Rhines in his pending habeas corpus proceedings. Docket Entry No. 184.
3.
On February 16, 2016, the Court denied Mr. Rhines’s petition for a
writ of habeas corpus.
App. 006
Case 5:00-cv-05020-KES Document 394 Filed 02/07/18 Page 2 of 15 PageID #: 6631
4.
On July 29, 2016, the Court entered an order appointing the Federal
Community Defender Office for the Eastern District of Pennsylvania (“FCDO”) as
co-counsel to represent Mr. Rhines. The Court indicated that the FPD would
continue to represent him. Docket Entry Nos. 354, 355.
5.
Mr. Rhines appealed this Court’s order denying habeas relief on
August 3, 2016. Docket Entry No. 357. The case has been argued in the Court of
Appeals for the Eighth Circuit and is awaiting decision.
6.
Mr. Rhines seeks an order allowing two mental health experts (a
forensic psychiatrist, Richard G. Dudley, Jr., M.D., and a neuropsychologist, Dan
Martell, Ph.D.) to enter the prison to evaluate him on behalf of his counsel. He has
never received neuropsychological testing, nor an evaluation by a psychiatrist who
had the benefit of an independent background investigation. Counsel plan to seek
the experts’ advice respecting a potential clemency application, should one become
necessary, and other matters. 1 The Department of Corrections, pursuant to South
Dakota statutory law, see SDCL 23A-27A-31.1, has indicated that it will not admit
experts into the prison to evaluate Mr. Rhines in the absence of an order from the
trial court.
The results of the evaluation may also be relevant, for example, to issues now
pending in the Eighth Circuit, if Mr. Rhines is successful in that appeal.
1
2
App. 007
Case 5:00-cv-05020-KES Document 394 Filed 02/07/18 Page 3 of 15 PageID #: 6632
7.
In earlier motion practice following this Court’s denial of habeas relief
in 2016, CJA counsel and the FPD sought an order authorizing expert access after
the breakdown of protracted efforts to negotiate terms for a neuropsychological
examination with the Department of Corrections. The motion maintained that the
order was necessary to vindicate Mr. Rhines’s statutory and constitutional right to
counsel, including a constitutionally adequate mitigation investigation, and asserted
that this Court, as a “trial” court, had the authority to grant the order under SDCL
23A-27A-31.1. Docket Entry No. 313-1 at 1–11. The State argued that the motion
“seeks to circumvent state court jurisdiction,” that any evidence the examination
uncovered would not help the defense, that the Court had already denied the habeas
petition, and that it would offend the principles of federalism to grant the motion
before the petitioner had exhausted available state remedies. Docket Entry No. 312
at 1, 4–5.
8.
This Court denied the motion because the governing statute required a
prisoner to seek a court order from the state court, and principles of comity and
federalism “caution against the assertion of power by one sovereign over another
without a clear grant of that authority in the first instance.” Docket Entry No. 334 at
6–11. It also ruled that the statute authorizing the appointment of counsel did not
enable the Court to “command prison personnel,” and that any evidence obtained
would have been inadmissible in the already concluded habeas proceedings. Id.
3
App. 008
Case 5:00-cv-05020-KES Document 394 Filed 02/07/18 Page 4 of 15 PageID #: 6633
9.
Mr. Rhines has now addressed the prudent federalism concerns that
partially motivated this Court’s earlier ruling, and he now seeks an order granting
expert access for a different reason. Specifically, he has sought relief in the South
Dakota courts, which have denied him the necessary order. He seeks this Court’s
assistance for the purpose of preparing a potential clemency application to the
Governor of South Dakota.
10.
First, Mr. Rhines moved in the Seventh Judicial Circuit Court in
Pennington County for a trial court order pursuant to SDCL 23A-27A-31.1. The
court (1) recognized no constitutional obligation to provide expert access,
“whatever minimal procedural safeguards might be guaranteed by the Due Process
Clause in a clemency proceeding,” and (2) refused to exercise its discretionary
authority under the statute. It indicated that statutory provisions governing
competence for execution adequately protected Mr. Rhines, and that expert access
pursuant to SDCL 23A-27A-31.1 was unnecessary. The court accordingly denied
the motion. See Exhibit A.
11.
Mr. Rhines filed a notice of appeal, but the state moved to dismiss on
the ground that the order was not appealable. The South Dakota Supreme Court
dismissed the appeal on January 2, 2018. See Exhibit B.
12.
Second, the experts’ evaluations promise to yield information that will
be relevant to Mr. Rhines’s clemency investigation. On January 27, 2018, Dr.
4
App. 009
Case 5:00-cv-05020-KES Document 394 Filed 02/07/18 Page 5 of 15 PageID #: 6634
Dudley signed a letter-report, based on a review of Mr. Rhines’s records, previous
expert reports, and a 2018 annotated social history of Mr. Rhines, concluding that
“there is clear evidence that there are additional, differential diagnostic options that
require further investigation by way of both a psychiatric and neuropsychological
evaluation.” See Letter of Richard G. Dudley, Jr., M.D., Jan. 27, 2018 (attached as
Exhibit C). Among other things, Dr. Dudley noted evidence that Mr. Rhines
suffered from a pattern of symptoms seen in children suffering from Autism
Spectrum Disorder, that he was exposed to toxins known to have a negative impact
on brain development, and that he suffered traumatic experiences—including a
brutal rape by four other soldiers—after enlisting in the Army at age 17. Dr.
Dudley also noted the Mr. Rhines endured the stress associated with being a
closeted gay man in the military. Exhibit C at 3–4.
13.
Dr. Dudley recommended that, in light of the newly available social
history information he had reviewed, additional diagnostic options be explored:
autism spectrum disorder, toxin exposure, the superimposition of military training
and trauma, and the effects of self-medication with alcohol and other substances.
Prior evaluators, who did not have the benefit of the social history information, had
identified some of the same symptoms but attributed them to “more
characterological psychiatric diagnoses.” Exhibit C at 5–6. Dr. Dudley concluded
that “this now available information is clearly critical to the credibility of any
5
App. 010
Case 5:00-cv-05020-KES Document 394 Filed 02/07/18 Page 6 of 15 PageID #: 6635
mental health evaluation of Mr. Rhines, and that an evaluator, armed with this
information, may end up with an opinion that is quite different than opinions
previously given.” Exhibit C at 6.
14.
Dr. Dudley’s report provides a firm factual basis for this Court to grant
Mr. Rhines an order giving access to his experts for evaluations. Further, as
explained below, this Court’s order appointing counsel authorizes both
representation and necessary expert services in support of a state executive
clemency application, and the Due Process Clause guarantees Mr. Rhines an
opportunity for reasonable expert services in aid of his clemency investigation. His
motion for an order of this Court, granting access for his experts, should
accordingly be granted.
15.
On February 2 and 3, 2018, undersigned counsel, Ms. Van Wyk,
exchanged email messages with Assistant Attorney General Paul Swedlund, who
indicated that the State opposes this motion.
BRIEF IN SUPPORT OF MOTION
A.
This Court’s Appointment of Counsel Pursuant to 28 U.S.C.
§ 3599 Extends to Representation and Expert Services Related to
Clemency Litigation.
16.
The governing statute, Supreme Court precedent, and guidance from
the Administrative Office of the Courts all make clear that this Court’s orders
appointing the FPD and FCDO to represent Mr. Rhines extend to clemency
proceedings in the State of South Dakota, and that the representation in clemency
6
App. 011
Case 5:00-cv-05020-KES Document 394 Filed 02/07/18 Page 7 of 15 PageID #: 6636
may include the provision of expert services. 2 18 U.S.C. § 3599 provides in
relevant part:
(a)(1) Notwithstanding any other provision of law to the contrary, in
every criminal action in which a defendant is charged with a crime
which may be punishable by death, a defendant who is or becomes
financially unable to obtain adequate representation or investigative,
expert, or other reasonably necessary services at any time either-(A) before judgment; or
(B) after the entry of a judgment imposing a sentence of death but
before the execution of that judgment;
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
appointed shall represent the defendant throughout every subsequent
stage of available judicial proceedings, including pretrial proceedings,
trial, sentencing, motions for new trial, appeals, applications for writ of
certiorari to the Supreme Court of the United States, and 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.
(f) Upon a finding that investigative, expert, or other services are
reasonably necessary for the representation of the defendant, whether
in connection with issues relating to guilt or the sentence, the court
may authorize the defendant’s attorneys to obtain such services on
As Federal Defender Organizations, the FPD and FCDO do not need to submit
expenses to this Court for expert services because they receive funding for that
purpose.
7
2
App. 012
Case 5:00-cv-05020-KES Document 394 Filed 02/07/18 Page 8 of 15 PageID #: 6637
behalf of the defendant and, if so authorized, shall order the payment of
fees and expenses therefor under subsection (g).
(emphases added).
17.
The Supreme Court construed this provision in Harbison, “hold[ing]
that § 3599 authorizes federally appointed counsel to represent their clients in state
clemency proceedings and entitles them to compensation for that representation.”
556 U.S. at 194. The Court’s conclusion was based upon a plain reading of
§ 3599(e). As explained by the Court:
Under a straightforward reading of the statute, subsection (a)(2)
triggers the appointment of counsel for habeas petitioners, and
subsection (e) governs the scope of appointed counsel’s duties. See
§ 3599(a)(2) (stating that habeas petitioners challenging a death
sentence shall be entitled to “the furnishing of ... services in
accordance with subsections (b) through (f)”). Thus, once federally
funded counsel is appointed to represent a state prisoner in § 2254
proceedings, she “shall also represent the defendant in such ...
proceedings for executive or other clemency as may be available to the
defendant.” § 3599(e). Because state clemency proceedings are
“available” to state petitioners who obtain representation pursuant to
subsection (a)(2), the statutory language indicates that appointed
counsel’s authorized representation includes such proceedings.
Id. at 5 (emphasis added).
18.
The Administrative Office of the United States Courts has issued
guidelines implementing § 3599 and Harbison. The guidelines for appointment of
counsel in capital cases provide in relevant part:
§ 620.70 Continuity of Representation
* * *
8
App. 013
Case 5:00-cv-05020-KES Document 394 Filed 02/07/18 Page 9 of 15 PageID #: 6638
(b) Under 18 U.S.C. § 3599(e) , unless replaced by an attorney
similarly qualified under Guide, Vol 7A, § 620.60 by counsel’s own
motion or upon motion of the defendant, counsel “shall represent the
defendant throughout every subsequent stage of available judicial
proceedings,” [including . . .]
• proceedings for executive or other clemency.
Similarly, the guidelines for clemency representation provide in relevant part:
§ 680 Clemency
§ 680.10 Clemency Representation by Counsel
§ 680.10.10 New Appointments
A new appointment for clemency representation is not necessary since,
under 18 U.S.C. § 3599(e) , each attorney appointed to represent the
defendant for habeas corpus proceedings under 28 U.S.C. § 2254,
unless replaced by similarly qualified counsel, “shall also represent
the defendant in such competency proceedings and proceedings for
executive or other clemency as may be available to the defendant.”
Guide to Judiciary Policy, Vol. 7, Defender Services, Part A, Guidelines for
Administering the CJA and Related Statutes, Chapter 6: Federal Death Penalty and
Capital Habeas Corpus Representations, available at
http://www.uscourts.gov/rules-policies/judiciary-policies/cja-guidelines/chapter-6ss-660-authorization-and-payment (visited June 27, 2017), and
http://www.uscourts.gov/rules-policies/judiciary-policies/cja-guidelines/chapter-6ss-680-clemency (visited January 14, 2018) (emphasis added). The Guidelines
contemplate the retention of experts for clemency work, providing:
§ 680.20.20 Processing of Clemency Vouchers
9
App. 014
Case 5:00-cv-05020-KES Document 394 Filed 02/07/18 Page 10 of 15 PageID #: 6639
All attorney compensation (Form CJA 30 (Death Penalty Proceedings:
Appointment of and Authority to Pay Court Appointed Counsel)) and
investigative, expert, or other services vouchers (Form CJA 31 (Death
Penalty Proceedings: Ex Parte Request for Authorization and Voucher
for Expert and Other Services)) pertaining to the clemency
representation should be submitted to the district court, regardless of
whether the habeas corpus case is on appeal at the time.
Id. (emphasis added).
19.
These authorities make clear that this Court’s appointment orders
(Docket Entry Nos. 184, 355), authorize the FPD and FCDO to investigate, prepare,
and represent Mr. Rhines in clemency proceedings, and that expert services in
support of clemency fall within this Court’s authority over the representation.
20.
Denying Mr. Rhines the ability to meet with his own expert would
render meaningless the guarantee of “reasonably necessary” expert services in
§ 3599(f). Congress’s intent to allow district courts to fund experts for clemency
includes, of necessity, an intent that the experts have a reasonable opportunity to
employ their expertise. The Court has authority to issue such orders as are
necessary in aid of its jurisdiction and pursuant to § 3599. See McFarland v. Scott,
512 U.S. 849, 858 (1994) (once petitioner invokes right to federally appointed
counsel, federal court has jurisdiction to order stay of state court execution
proceedings); see also All Writs Act, 28 U.S.C. § 1651 (“[A]ll courts established by
Act of Congress may issue all writs necessary or appropriate in aid of their
respective jurisdictions.”). Thus the authority to provide funding for both
10
App. 015
Case 5:00-cv-05020-KES Document 394 Filed 02/07/18 Page 11 of 15 PageID #: 6640
representation and expert services for state clemency proceedings must logically
include the authority to grant experts access to prisoners to perform their
evaluations.
21.
In its previous ruling denying an expert access order, this Court cited
Baze v. Parker, 711 F. Supp. 2d 774, 776 (E.D. Ky. 2010), aff’d 632 F.3d 338 (6th
Cir. 2011). The district court in Baze, however, did not consider McFarland, which
upheld the grant of a stay of state court proceedings before the petitioner has filed a
habeas petition. Furthermore, Baze sought intrusive relief against third parties who
were agents of the state; he demanded that the state Department of Corrections
make its employees available for clemency interviews focusing on Baze’s conduct
over the course of his years in prison. As the Sixth Circuit opinion described
Baze’s argument, he wanted the federal courts to “manage and enforce the
collection of evidence in state clemency proceedings.” Baze, 632 F.3d at 342; see
also Spisak v. Tibbals, No. 1:95-cv-2675, 2011 WL 9614 (N.D. Ohio Jan. 3, 2011)
(following Baze, without considering McFarland, and rejecting demand to compel
recording of Parole Board’s clemency interview of petitioner). Mr. Rhines, in
contrast, merely seeks permission for his experts—his own attorneys’ agents—to
conduct evaluation visits, a foundational first step to forming their opinions.
11
App. 016
Case 5:00-cv-05020-KES Document 394 Filed 02/07/18 Page 12 of 15 PageID #: 6641
22.
It follows that the Court has authority to guarantee Mr. Rhines’s
experts the necessary access to him to conduct the evaluations.3
B.
Mr. Rhines Has a Due Process Right to Expert Services For
Clemency.
23.
Ake v. Oklahoma, 470 U.S. 68, 84 (1985), held that a capital defendant
has a due process right to appropriate expert assistance when his or her mental
condition (there, sanity) is in issue. The Court has extended that right to other
contexts. See, e.g., Ford v. Wainwright, 477 U.S. 399, 414, 427 (1986)
(competency for execution); see also McWilliams v. Dunn, 137 S. Ct. 1790, 1793
(2017) (“[W]hen certain threshold criteria are met, the State must provide an
indigent defendant with access to a mental health expert who is sufficiently
available to the defense and independent from the prosecution to effectively ‘assist
in evaluation, preparation, and presentation of the defense.’”) (citation omitted).
Furthermore, the minimum requirements of due process apply in state clemency
proceedings. See Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 288–89
(1998) (O’Connor, J., concurring). Applying these principles, the Eighth Circuit
Habeas Rule 6 also gives a habeas court authority, for good cause, to authorize the
petitioner to “conduct discovery under the Federal Rules of Civil Procedure.” Rule
35(a)(1) of the rules of civil procedure allows the court to “order a party to produce
for examination a person who is in its custody or under its legal control.” If this
Court grants Mr. Rhines’s motion to amend his habeas petition (Docket No. 383),
or if the Eighth Circuit remands for further habeas proceedings, Rules 6 and 35 will
authorize the Court to grant his expert access motion. His need to conduct a
clemency investigation and Dr. Dudley’s opinion provide the requisite good cause.
12
3
App. 017
Case 5:00-cv-05020-KES Document 394 Filed 02/07/18 Page 13 of 15 PageID #: 6642
has held that a state court’s interference with a condemned inmate’s efforts to
secure a witness’s testimony in support of clemency violated the Due Process
Clause. See Young v. Hayes, 218 F.3d 850, 852–53 (8th Cir. 2000); see also Noel v.
Norris, 336 F.3d 648,649 (8th Cir. 2003) (“[I]f 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.”).
24.
Mr. Rhines has never received neuropsychological testing to determine
if he suffers from any disease of the brain, injury to the brain, or the effects of
toxins on his brain. He has never received an evaluation by a psychiatrist who had
the benefit of an independent background investigation. As described in Dr.
Dudley’s letter, the results of testing and evaluation by his experts may yield
information highly relevant to the clemency decision. This Court should
accordingly grant his request for an order directing the Warden to produce him for
evaluation.
13
App. 018
Case 5:00-cv-05020-KES Document 394 Filed 02/07/18 Page 14 of 15 PageID #: 6643
CONCLUSION
For these reasons, Mr. Rhines respectfully moves this Court for an order
directing the Warden to produce Mr. Rhines at a mutually convenient time and
under reasonable conditions for evaluations by his expert neuropsychologist and
psychiatrist .
Respectfully submitted,
STUART B. LEV
CLAUDIA VAN WYK
Assistant Federal Defenders
BY: /s/ Claudia Van Wyk
Federal Community
Defender Office, Capital Habeas Unit
NEIL FULTON
Federal Defender
JASON J. TUPMAN
Assistant Federal Defender
Office of the Federal Public Defender
Districts of South Dakota and North
Dakota
200 W. 10th Street, Suite 200,
Sioux Falls SD 57104
Telephone (605) 330-4489
Facsimile (605) 330-4499
Filinguster_SDND@fd.org
601 Walnut Street, Suite 545 West
Philadelphia, PA 19106
Telephone (215) 928-0520
Facsimile (215) 928-0826
Claudia_Vanwyk@fd.org
Counsel for Petitioner, Charles Russell Rhines
Dated: February 7, 2018
14
App. 019
Case 5:00-cv-05020-KES Document 394 Filed 02/07/18 Page 15 of 15 PageID #: 6644
CERTIFICATE OF SERVICE
This will certify that, on February 7, 2018, a true and correct copy of the
foregoing has been electronically filed with the Clerk of the Court via CM/ECF to
be served on the following persons authorized to be noticed:
Paul S. Swedlund
Matthew W. Templar
Assistant Attorneys General
State of South Dakota
1302 East Highway 14, Suite 1
Pierre, SD 57501
/s/ Claudia Van Wyk
Claudia Van Wyk
App. 020
Case 5:00-cv-05020-KES Document 394-1 Filed 02/07/18 Page 1 of 5 PageID #: 6645
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CHARLES RUSSELL RHINES,
Petitioner,
v.
Darin Young, Warden,
South Dakota State Penitentiary,
Respondent.
)
)
)
)
)
)
)
)
)
)
CIV. 5:00-5020-KES
EXHIBIT A
MOTION FOR EXPERT ACCESS
App. 021
Case 5:00-cv-05020-KES Document 394-1 Filed 02/07/18 Page 2 of 5 PageID #: 6646
&tbttttb Jubfcial QI:frcuft QI:ourt
P.O. Box230
Rapid City SD 57709-0230
(605) 394-2571
CIRCUIT JUDGES
MAGISTRATE JUDGES
COURT ADMINISTRATOR
Craig A. Pfeifle, Presiding Judge
Matthew M. Brown
Jeffrey R. Connolly
JeffW. Davis
Robert Gusinsky
Heidi L. Linngren
Robert A. Mandel
Jane Wipf Pfeifle
Scott M~ Bogue
Todd J. Hyronimus
Bernard Schuchmann
Marya Tellinghuisen
Kristi W. Erdman
STAFF ATTORNEY
Laura Hilt
October 24, 2017
v Mr. Jason Tupman
Office of the Federal Public Defender
Districts of South Dakota and North Dakota
200 W. 10th Street, Suite 200
Sioux Falls, SD 57104
Mr. Paul Swedlund
Office of the Attorney General
1302 East Highway 14, Suite 1
Pierre, SD 57501
Re: Case no. 51 C93-000081AO
Dear Counsel:
The Court is in receipt of submissions from both parties regarding Defendant's Motion for
Expert Access (filed 6/9/17) for the purposes of a clemency applic~tion. Defendant, Charles
Rhines, requests permission to be evaluated by two mental health experts. 1 In support of the
Motion, Defendant (1) sets forth a due process argument and (2) requests that the Court exercise
discretionary authority under SDCL 23A-27A-31.1. The State opposes Defendant's request. For
the reasons that follow, the Motion is denied.
1
Counsel for Defendant states that "Mr. Rhines is not seeking funding from this Court His federal counsel are
representing him pursuant to appointments by the federal district court. This motion seeks only access for the
experts already retained by his counsel." Petitioner's Reply Memorandum in Support of Motion for Expert
Access, p. I n. 1 (filed 6/23/17).
App. 022
Case 5:00-cv-05020-KES Document 394-1 Filed 02/07/18 Page 3 of 5 PageID #: 6647
.~
1. Due Process
Defendant "maintains that he has a due process right to expert assistance to investigate his
clemency petition.'' Petitioner's Reply Memorandum in Support of Motion for Expert Access, p.
3 (filed 6/23/17). In the case of Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 118
S.Ct. 1244, 140 L.Ed.2d 387 (1998), the United States Supreme Court discussed due process in
the context of clemency proceedings. The Eighth Circuit Court of Appeals summarizes the
opinion as follows:
In Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 118 S.Ct. 1244, 140
L.Ed.2d 387 (1998), the Supreme Court addressed the application of the Due
Process Clause to state clemency proceedings. A splintered Court rejected a claim
that Ohio's clemency proceedings violated an inmate's constitutional right to due
process. A plurality of four Justices emphasized that a request for clemency "is .
simply a unilateral hope," id. at 282, 118 S.Ct. 1244 (opinion of Rehnquist, C.J.)
(internal quotation omitted), and suggested that the Due Process Clause has no
application to the discretionary clemency process. A concurring opinion of four
Justices concluded that "some minimal procedural safeguards apply to clemency
proceedings," id. at 289, H8 S.Ct: 1244 (O'Connor, J., concurring in part and
concurring in the judgment) (emphasis in original), but rejected the inmate's :
challenge to Ohio's procedures. Justice O'Connor wrote that "[j]udicial
intervention might, for example, be warranted in the face of a scheme whereby a
state official flipped a coin to determine whether to grant clemency, or in a case
where the State arbitrarily denied a prisoner any access to its clemency process."
Id A separate opinion of Justice Stevens agreed with Justice O'Connor that some
minimal procedural safeguards apply. Id at 290-91, 118 S.Ct. 1244 (Stevens, J.,
concurring in part and dissenting in part).
Winfleldv. Steele, 755 F.3d 629, 630-31 (8th Cir. 2014). After summarizing the Woodward
opinion, the Winfield court went on to indicate that in the context.of clemency proceedings there
might exist some minimal procedural safeguards under the Due Process Clause. Winfield, 755.
F.3d at 630 ("Whatever minimal procedural safeguards might be guaranteed by the Due Pr~ess
Clause in a clemency proceeding are likely satisfied here.") In Noel v. Norris, 336 F.3d 648 (8th
Cir. 2003), the Eighth Circuit addressed whether due process was violated when a request to:,
undergo a particular kind of brain-scan procedure in connection with a clemency applicatio~ was
denied:
'"\ ·
Because clemency is extended mainly as a matter of grace, and the power to
grant it is vested in the executive prerogative, it is a rare case that presents a
successful due process challenge to clemency procedures themselves. See Ohio
Adult Parole Auth. v. Woodard, 523 U.S. 272, 280-81, 118 S.Ct. 1244, 140
L.Ed.2d 387 (1998). On the other hand, 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. See Young v. Hayes, 218 F.3d 850,
853 (8th Cir.2000).
App. 023
Case 5:00-cv-05020-KES Document 394-1 Filed 02/07/18 Page 4 of 5 PageID #: 6648
Mr. Noel's claim seems to be a kind of amalgam. He asserts that state officials
did not give him enough time to prepare for his clemency hearing and that the
state would not allow him to undergo a particular kind of brain-scan procedure to
prove his assertion that his brain damage ought to be considered on the question
of whether he deserved clemency.
We think that Mr. Noel's claim must be rejected. He presented a four-hundred
page record to the state authority charged with making recommendations
concerning clemency, and that authority denied his request. The materials that he
presented included some evidence, ihough not the particular evidence that Mr.
Noel sought to produce, of his brain damage. He does not claim that he was
prevented from presenting any other kind of evidence. In the circumstances, we
cannot say that the process was so arbitrary as to be unconstitutional or that the
state prohibited Mr. Noel from using the procedure that it.had established.
Noel, 336 F.3d at 649. Similar to the def~ndant in Noel, Mr. Rhines would like to undergo
medical evaluation in connection with a clemency application and has access to some evidence
regarding mental health; though not the particular evidence he is requesting.2 Based on Noel, this
Court conch.~des that access .to the mental h~alth professionals is not requi~ed under "[w]hatever
minimal procedural safeguards might be guaranteed by the Due Process Clause in a clemency
proceeding.... " Winfield, 155 F.3d at 631.
2. SDCL 23A-27A-31.l
Defendant asks the Court to exercise discretionary authority under SDCL 23A-27A-31.1
to grant the requested access to mental health experts. Petitioner's Reply Memorandum in
Support of Motion for Expert Access, p. 2 (filed 6/23/17). SDCL 23A-27A-31.1 states a8
follows:
i
I! .
From the time of delivery to the penitentiary until the infliction of the punishment
of death upon the defendant, unless lawfully discharged from such imprisonment,
the defendant shall be segregated.from other inmates at the penitentiary. No other
person may be allowed access to the defendant without an order of the trial court
except penitentiary staff, Department of Corrections staff, the defendant's counsel,
members of the clergy if requested by the defendant, and members of the
defendant's family. Members of the clergy.and members of the defendant's family
are subject to approval by the warden before being allowed access to the
defendant.
·
·In support of the request for expert access, Defendant's counsel indicates concern for
Defendant's current mental health:
·
His current counsel have serious and substantial questions related to Mr. Rhines's
mental health. and condition, and the review of prior records and reports has not
Defendant has previously been eval~ated by mental health professionals in connection with court proceedfogs
in both state and federal court. Response to Motion for Expert Access, Exhibits 1-8 (filed 6/15/2017).
2
App. 024
Case 5:00-cv-05020-KES Document 394-1 Filed 02/07/18 Page 5 of 5 PageID #: 6649
. .
~
resolved these questions. Granting defense mental health experts access to visit
and evaluate Mr. Rhines will allow counsel to look into, and possibly rule out,
counsel's mental health concerns. This will enable counsel to prepare for and
advise Mr. Rhines on a range of issues, including, but not limited to, a potential
application for executive clemency, should such an application be warranted.
Motion for Expert Access p. 2 (filed 6/9/17). Ultimately, under South Dakota law a defendant
must not to be put to death if found mentally incompetent to be executed, and the legisfature has
provided a statutory procedure to be used when counsel has concerns regarding a defendanes
mental competency in this regard. SDCL 23A-27A-22 to 23A-27A-26. Consequently, since
counsel for Defendant may utilize the procedure provided by statute to address concerns
regarding Mr. Rhines' current mental health, the Cow;t declines to grant the Motion under SDCL
23A-27A-31.1.
ORDER
Accordingly, the Motion for Expert Access is hereby DENIED.
Dated thi2.!r:_ day of October, 2017
Robert A. Mandel
Circuit Court Judge
[SEAL]
Penntngton County, SO
FILED
IN CIRCUIT COURT
OCT 2 4 2017
App. 025
Case 5:00-cv-05020-KES Document 394-2 Filed 02/07/18 Page 1 of 2 PageID #: 6650
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CHARLES RUSSELL RHINES,
Petitioner,
v.
Darin Young, Warden,
South Dakota State Penitentiary,
Respondent.
)
)
)
)
)
)
)
)
)
)
CIV. 5:00-5020-KES
EXHIBIT B
MOTION FOR EXPERT ACCESS
App. 026
Case 5:00-cv-05020-KES Document 394-2 Filed 02/07/18 Page 2 of 2 PageID #: 6651
STATE OF SOUTH DAKOTA
In the Supreme Court
I, Shl~ey A.Jameson-Ferge!, Clerk of the Supreme Court of
South Dakota, hereby certify that thfi withinInstrument Is atrue
and correct copy of theortginatthereolas the same appears IN
on record In my office. In wttness whereof, I have hereunto set
my hand aoor ixed the seal ol said court at Pierret ( 'hls
;(4• ,~
, 20
•
·c~~ci:
THE SU PRE ME COURT
JAN -2 2018
STATE OF SOUT H DAKOTA
~/J~~t,I
Clerk
* * * *
STATE OF SOUTH DAKOTA,
Plaintiff and Appellee,
vs .
CHARLES RUSSELL RHINES,
Defendant and Appellant .
- - - - - -
FILED
OF THE
Oenutv
- - - -
SUPREME COURT
STATE OF SOUTH DAKOTA
- - - - - -
ORDER DISMISSING APPEAL
)
)
)
)
)
)
)
)
#28460
- - - - -
- - - - - - - - - -
Appellee having served and filed a moti o n to dismiss the
appeal taken in the above-entitled matter, and appellant having serve
and filed a response thereto , and appellee having serve d and filed a
rep l y in support of motion to di s miss appeal , and th e Court having
considered the mot ion , response and reply , now , therefore , it is
ORDERED t h at the appeal b e and it is her e by dismissed.
DATED at Pierre , South Dakota , this 2nd day of January ,
2018 .
BY THE COURT :
David Gilbertson , Chi ef Justice
(Justice Janine M. Kern disqualified. )
PARTICIPATING: Chief Justice David Gilbertson, Justices Steven L. Zinter,
Glen A. Severson and Steven R. Jensen .
App. 027
Case 5:00-cv-05020-KES Document 394-3 Filed 02/07/18 Page 1 of 7 PageID #: 6652
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CHARLES RUSSELL RHINES,
Petitioner,
v.
Darin Young, Warden,
South Dakota State Penitentiary,
Respondent.
)
)
)
)
)
)
)
)
)
)
CIV. 5:00-5020-KES
EXHIBIT C
MOTION FOR EXPERT ACCESS
App. 028
Case 5:00-cv-05020-KES Document 394-3 Filed 02/07/18 Page 2 of 7 PageID #: 6653
27 January 2018
Stuart Lev
Assistant Federal Defender
FEDERAL COMMUNITY DEFENDER OFFICE
EASTERN DISTRICT OF PENNSYLVANIA
The Curtis Center, Suite 545 West
601 Walnut Street
Philadelphia, Pennsylvania 19106
RE: Charles Rhines
Dear Mr. Lev:
As requested, I have reviewed the records and documents that you sent to me regarding your
client, Charles Rhines. I am writing to summarize my response to that review in light of your
referral question. The conclusions that I express herein I hold to a reasonable degree of
medical certainty.
Records and Documents Reviewed
•
•
•
School records for Mr. Rhines
The statements of Mr. Rhines, dated 19 June 1992 and 8 July 1992
The report of a psychiatric evaluation of Mr. Rhines, performed by D.J. Kenelly, M.D.
(who I understand was retained by Mr. Rhines' trial-level defense team from the Office
of the Public Defender, but he was not called to testify at trial), dated 24 November
•
A "brief psychosocial history" (apparently based solely on an interview(s) with Mr.
Rhines), prepared by Steve Dresback, MSW (since this history is on Dr. Kenelly's
letterhead I presume he worked with or for Dr. Kenelly), dated 17 November 1992
The report of a psychological evaluation of Mr. Rhines, performed by Bili H. Arbes, Ph.D.
(performed upon a referral by Dr. Kenelly, and he was also not called to testify at trial),
dated 1 December 1992
The transcript of Mr. Rhines' January 1993 trial
An affidavit, dated 11 June 2012, summarizing the findings of a psychological evaluation
of Mr. Rhines, performed by Dewey J. Ertz, Ed.D. (who I understand was retrained by
Mr. Rhines' post-conviction defense team from the Federal Public Defender), and also
1992
•
•
•
1
App. 029
Case 5:00-cv-05020-KES Document 394-3 Filed 02/07/18 Page 3 of 7 PageID #: 6654
•
•
•
•
summarizing Dr. Ertz's opinion regarding the legal team's decision to not call mental
health experts at the trial level.
A letter from Ronald D. Franks, M.D. (who I understand was retrained by the Attorney
General's office during post-conviction proceedings), responding to/critiquing Dr. Ertz's
report, dated 13 July 2012
A letter from Thomas E. Schacht, Psy.D., ABPP (who I understand was also retained by
the Attorney General's office during post-conviction proceedings), responding
to/critiquing Dr. Ertz's report, dated 28 August 2012
The affidavit of Robert D. Shaffer, Ph.D. (who I understand was retained by prior habeas
counsel), dated 19 October 2015, in which he outlines what additional testing of Mr.
Rhines is indicated and the reasons why such additional testing is indicated
The declaration of Jesica Johnson, MSS, MLSP (an investigator and mitigation specialist),
which is an annotated social history of Mr. Rhines (which I understand was developed at
your request), dated 12 January 2018
In Summary
It is my understanding that your referral question is whether or not there is a need for further
psychiatric and/or neuropsychological evaluation of Mr. Rhines in light of the social history
information now available for Mr. Rhines.
Although there is considerable information about Mr. Rhines in the records and documents that
I have reviewed, since I have not had the opportunity to examine him, I am not in a position to
offer an independent diagnostic opinion regarding Mr. Rhines. However, based on my review
of the above noted records and documents, there is clear evidence that there are additional,
differential diagnostic options that require further investigation by way of both a psychiatric
and neuropsychological evaluation.
More specifically, the annotated social history, prepared by Ms. Johnson based on records,
documents, and information gathered from Mr. Rhines and others who have known him
throughout his life, includes a considerable amount of extremely important information that
was apparently not available to the above noted prior evaluators of Mr. Rhines and those who
critiqued those prior evaluations. It is my opinion that had this additional information been
available to prior evaluators and those who critiqued those prior evaluations, their differential
diagnosis of Mr. Rhines would have been expanded to include significant and likely more
accurate diagnoses other than those previously given. Therefore in my opinion, new psychiatric
and neuropsychological evaluations of Mr. Rhines, informed by this additional information, are
indicated.
Since all of the records and documents I have reviewed are available to you, I will not detail all
of the information contained in those records and documents. Instead, I will focus on the
questions raised by my review, the significance of those questions, and why those questions
require further investigation through new psychiatric and neuropsychological evaluations of
Mr. Rhines.
2
App. 030
Case 5:00-cv-05020-KES Document 394-3 Filed 02/07/18 Page 4 of 7 PageID #: 6655
Childhood Difficulties
The information contained in the recently developed social history prepared by Ms. Johnson
indicates that throughout his childhood years, Mr. Rhines exhibited a pattern of symptoms that
is seen in children suffering from Autism Spectrum Disorder. More specifically, there are
numerous examples of the type of persistent deficits in social communication and social
interaction seen in this disorder; there are numerous examples of the type of restricted,
repetitive patterns of interests and activities seen in this disorder; and these symptoms clearly
caused significant impairment in virtually all aspects of his functioning. It should also be noted
that Mr. Rhines has a family history of Autism Spectrum Disorder. It appears that none of this
information was available to prior evaluators.
It appears that Mr. Rhines was always quite aware of the fact that he just didn't fit in.
However, not surprisingly, he has lacked insight into the fact that the above noted symptoms
seen in children suffering from Autism Spectrum Disorder existed and impaired his ability to
interact with and fit in with peers; therefore, he was unable to report this information/describe
these early symptoms to prior evaluators; and he focused primarily on the other childhood
difficulties that he was aware of and that also impaired his social interaction. For example, he is
quite aware of the fact that he was harassed and bullied for being overweight and otherwise
unattractive. It also appears that at some level, even when he was a child and early adolescent,
he was aware of the fact that he was attracted to other boys; he feared that others would
recognize this fact; and this also made it more difficult for him to comfortably fit in with peers.
In addition, the information contained in the social history indicates that during his childhood
years, Mr. Rhines was exposed to various toxins known to have a negative impact on brain
development. It appears that this information was also unknown to Mr. Rhines and therefore
would have only been known to prior evaluators had they had access to a well-developed social
history. As Dr. Shaffer noted, knowledge of such exposure would have prompted a fuller
neuropsychological evaluation of Mr. Rhines' cognitive capacity.
The range of psychiatric symptoms and functional impairments that Mr. Rhines evidenced
during his childhood and adolescent years indicates that these childhood difficulties, as they
interacted with each other, had a major impact on his development and in turn, his ability to
function. As noted above, there were the symptoms seen in children suffering from Autism
Spectrum Disorder and their impact on his ability to function. In addition, the social history
indicates that there was considerable anxiety resulting from his emerging sense of his sexual
orientation; there was mood instability, at times accompanied by suicidal ideation; there was
self-medication with alcohol and other substances; and there was considerable difficulty with
academic performance and other indications of impaired cognitive capacity.
Furthermore, these childhood difficulties and their impact on Mr. Rhines were made all the
more severe by the fact that his parents failed to recognize and attempt to address any of his
difficulties, despite the fact that his two sisters and others recognized that he was having
3
App. 031
Case 5:00-cv-05020-KES Document 394-3 Filed 02/07/18 Page 5 of 7 PageID #: 6656
difficulty and his sisters attempted to encourage his parents to intervene. As a result, his
difficulties continued unabated; they had a significant impact on his ability to function moving
forward; and they were also then further complicated by additional difficulties he experienced
later in his life.
Late Adolescent/Early Adult Years
The social history indicates that Mr. Rhines entered the Army in 1973, when he was only about
17 years old. Here too, while his sisters felt that he was unfit or at least poorly equipped for
military service, his parents supported the move, feeling that it would be in his best interest.
Given Mr. Rhines' above noted combination of childhood difficulties, it is not surprising that his
performance in the Army was uneven. Then, the fact that he was brutally raped by four other
soldiers not long after entering the Army was most certainly traumatic in and of itself, and
further exacerbated his pre-existing difficulties and their impact on his performance in the
Army.
On the one hand, Mr. Rhines proved to be quite capable of learning everything required to
engage in violent combat; the set of skills that he learned were concrete and easy to grasp; and
as he mastered those skills, he could present as increasingly fearless. Then, his learning of
those skills was most certainly reinforced during his about ten-month period of service in the
Korean Demilitarized Zone, where the outbreak of life-threatening, active combat was a
constant threat. On the other hand, he remained socially impaired/detached, with a limited
range of options for responding to complicated social interactions other than withdrawal or this
newly learned violence; he also remained a closeted gay man, fearful of being discovered and
the retribution that might accompany such a discovery; and he was likely angry or at least
resentful about still finding himself unable to fully fit in with peers. Mr. Rhines' uneven
performance in the Army was then further complicated by his increased use of alcohol and
other substances. In 1976, after multiple disciplinary infractions, he received a general
discharge from the Army under honorable conditions.
Even in the absence of information about any pre-existing childhood difficulties, the impact of
the traumatic experiences he endured in the Army, such as the brutal rape and his experiences
in the Korean Demilitarized Zone, warrant further exploration, as does the stress associated
with being in the military as a closeted gay man, and his use/abuse of alcohol and other
substances. However, when Mr. Rhines' experiences in the Army are superimposed upon his
childhood difficulties, there are additional concerns that require further exploration, especially
with regard to how mastering and incorporating a newly learned combative, violent response
into an otherwise extremely impaired and limited set of interpersonal responses to complicated
social interactions impacted on Mr. Rhines' ability to function.
4
App. 032
Case 5:00-cv-05020-KES Document 394-3 Filed 02/07/18 Page 6 of 7 PageID #: 6657
Recommendations
As noted above, the social history information now available about Mr. Rhines indicates that
there are additional differential diagnostic options that need to be explored by way of further
psychiatric and neuropsychological evaluation. Furthermore, given the nature of the diagnostic
options that need to be considered, and the context of capital litigation, such further
exploration must also focus on the impact of any identified psychiatric and neuropsychiatric
difficulties on Mr. Rhines' adult and current functioning.
First, there is the question of whether or not Mr. Rhines, during his childhood years, suffered
from Autism Spectrum Disorder and/or suffered from the effects of exposure to various toxins
on the development of his brain. This question clearly requires further exploration. Either of
these childhood difficulties would have further complicated his other childhood difficulties,
including his distress about not fitting in, his distress about his emerging sense of his sexual
orientation, the harassment and bullying he endured, and his academic difficulties, all of which
he endured in the absence of adequate parental nurture, support and assistance. In addition,
either of these childhood difficulties would have made it all the more difficult for him to cope
with all of his childhood difficulties, thereby making it even clearer why he suffered from so
much anxiety and mood instability, and why he turned to self-medication with substances.
Furthermore, either of these childhood difficulties would have impaired his functioning in such
a way that his military training, specifically his training in violent combat, could have ultimately
had a negative impact on his ability to function, in that he learned a violent response to
complicated interpersonal situations for which he had little-to-no alternative, more appropriate
response.
Second, even if it becomes clear that Mr. Rhines suffered from Autism Spectrum Disorder
and/or the effects of exposure to various toxins on his developing brain, further exploration is
required to determine to what extent those difficulties did, in fact, impact on how his military
training influenced his development. In so doing, the impact of the traumas he endured in the
Army, such as the brutal rape and his experiences while in the Korean Demilitarized Zone, must
also be considered.
Third, it appears that Mr. Rhines' self-medication with alcohol and other substances eventually
became substance abuse difficulties. Further investigation is required to determine whether or
not this is the case, and the extent to which substances further exacerbated his other
psychiatric difficulties. In addition, it has been well established that in order for treatment to
be successful, persons who suffer from substance abuse difficulties and some other major
psychiatric difficulty require a 'dual-diagnosis' treatment program that coordinates and
integrates the treatment of both difficulties. Therefore, if Mr. Rhines suffered from substance
abuse difficulties and any of the other above noted major psychiatric difficulties, the fact that
he did not receive such 'dual-diagnosis' treatment would help further explain why he received
such a limited benefit from the one brief course of treatment he had.
5
App. 033
Case 5:00-cv-05020-KES Document 394-3 Filed 02/07/18 Page 7 of 7 PageID #: 6658
In the absence of the social history information currently available for Mr. Rhines, the above
described major psychiatric difficulties were not considered by prior evaluators. It is important
to note that some of the symptoms of these difficulties were identified, such as his lack of
appropriate social interaction with others, his impulsivity, his anxiety, his depression, and his
substance abuse. However, in the absence of more information, these symptoms were readily
attributed to more characterlogical psychiatric diagnoses (such as Antisocial Personality
Disorder or Schizoid Personality Disorder), Generalized Anxiety Disorder, situational depression,
or Attention Deficit-Hyperactivity Disorder. In addition, his substance abuse was viewed as
unrelated to any other psychiatric difficulty, and his uneven performance in the Army was
explained by a simple decision on his part to perform well in some ways and not perform well in
other ways.
This case is a good example of why a vigorously developed social history is so critical to the
performance of a competent mental health evaluation in capital proceedings. Mr. Rhines'
social history includes information that he is unaware of and therefore unable to report, such
as his exposure to toxins; it includes information for which he has no insight and is therefore
unable to report, such as the symptoms he evidenced during his childhood years that are seen
in children suffering from Autism Spectrum Disorder; and it includes information that he was
likely aware of, but unlikely to spontaneously report (if not directly asked about it) in the
absence of a well-developed working relationship with an interviewer, such as his early feelings
about being gay, the brutal rape that he endured while in the Army, and the struggles and
anxieties associated with being a closeted gay man.
I hope I have made it clear that this now available information is clearly critical to the credibility
of any mental health evaluation of Mr. Rhines, and that an evaluator, armed with this
information, may end up with an opinion that is quite different than opinions previously given.
Sincerely,
~ Ad.
J::::...-..e@
Richard G. Dudley, Jr., M.D,
·
Psychiatrist
Diplomate, American Board of Psychiatry & Neurology
6
App. 034
Case 5:00-cv-05020-KES Document 394-4 Filed 02/07/18 Page 1 of 1 PageID #: 6659
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CHARLES RUSSELL RHINES,
Petitioner,
v.
Darin Young, Warden,
South Dakota State Penitentiary,
Respondent.
)
)
)
)
)
)
)
)
)
)
CIV. 5:00-5020-KES
ORDER
AND NOW, this ______ day of _________________, 2018, IT IS HEREBY
ORDERED that Petitioner’s Motion for Expert Access is GRANTED. The South
Dakota State Penitentiary shall produce Petitioner at a mutually convenient time
and under reasonable conditions for evaluations by his expert neuropsychologist
and psychiatrist.
BY THE COURT:
________________________________
The Honorable Karen E. Schreier
United States District Court Judge
App. 035
Case 5:00-cv-05020-KES Document 313-1 Filed 03/09/16 Page 1 of 13 PageID #: 4594
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CHARLES RUSSELL RHINES,
Petitioner,
v.
DARIN YOUNG, Warden,
South Dakota State Penitentiary,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
CIV. 00-5020-KES
PETITIONER'S
AMENDED MOTION FOR
EXPERT'S ACCESS TO
CONDUCT EVALUATION
CAPITAL CASE
Petitioner, Charles Russell Rhines, moves by and through undersigned counsel for an
order allowing Robert Shaffer, Ph.D, access to the Jameson Unit of the South Dakota State
Penitentiary located in Sioux Falls, South Dakota, on March 16-18, March 29-30, or April 26-
28, 2016, to conduct a comprehensive neuropsychological evaluation of Petitioner. In support of
his motion, the following is stated:
1. Under 18 U.S.C. § 3599(e), attorneys who are appointed to represent petitioners in
capital habeas corpus proceedings "shall represent the defendant throughout every subsequent
stage of available judicial proceedings, including ... 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."
2. Since her appointment, learned counsel has been diligently investigating this case in
accordance with her professional duties, and continues to do so. See American Bar Association,
1
App. 036
Case 5:00-cv-05020-KES Document 313-1 Filed 03/09/16 Page 2 of 13 PageID #: 4595
Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases
(Rev. Ed. 2003), Guideline 10.7(A), available at www.abanet.org/deathpenalty (hereinafter
"ABA Guidelines") ("counsel at every stage have an obligation to conduct thorough and
independent investigations relating to the issues of both guilt and penalty"). The ABA
Guidelines have long served as a guide for the Supreme Court of the United States in assessing
the performance of counsel in death penalty cases. See, e.g., Wiggins v. Smith, 539 U.S. 510,
524 (2003); Rompilla v. Beard, 545 U.S. 374, 387 (2005). The Guidelines "apply from the
moment the client is taken into custody and extend to all stages of every case in which the
jurisdiction may be entitled to seek the death penalty, including initial and ongoing investigation,
pretrial proceedings, trial, post-conviction review, clemency proceedings and any connected
litigation." ABA Guidelines, Guideline l.l(B). They instruct that "[c]ounsel should provide
high quality legal representation in accordance with these Guidelines for so long as the
jurisdiction is legally entitled to seek the death penalty." Id., Guideline 10.2. Thus, counsel have
a professional obligation to conduct themselves in accordance with the ABA Guidelines as long
as Mr. Rhines remains under a sentence of death.
3. In conformity with their obligations under prevailing professional standards of
practice in death penalty cases, counsel respectfully and in good faith request that this Court
enter an Order allowing neuropsychologist Robert Shaffer, Ph.D, (see Curriculum Vitae,
attached hereto as Exhibit A), access to the Jameson Unit of the South Dakota State Penitentiary,
located in Sioux Falls, South Dakota, on March 16-18, March 29-30, or April 26-28, 2016, to
conduct a comprehensive neuropsychological evaluation of Petitioner, pursuant to the
requirements Dr. Shaffer has outlined in the attached "Conditions Required for Jail Evaluation."
(Exhibit B).
2
App. 037
Case 5:00-cv-05020-KES Document 313-1 Filed 03/09/16 Page 3 of 13 PageID #: 4596
4. "[I]n capital cases the fundamental respect for humanity underlying the Eighth
Amendment ... requires consideration of the character and record of the individual offender and
the circumstances of the particular offense as a constitutionally indispensable part of the process
of inflicting the penalty of death." Woodson v. North Carolina, 428 U.S. 280, 304 (1976). This
individualization doctrine is rooted in the notion that, in determining whether to fix the ultimate
punishment at death, the process must not exclude from consideration "the possibility of
compassionate or mitigating factors stemming from the diverse frailties of humankind." Id. at
304. At stake is the "reliability in the determination that death is the appropriate punishment in a
specific case." Id. at 305. This means that the sentencer in a capital case must "'not be
precluded from considering, as a mitigating factor, any aspect of a defendant's character or
record and any of the circumstances of the offense that the defendant proffers as a basis for a
sentence less than death."' Eddings v. Oklahoma, 455 U.S. 104, 110 (1982) (quoting Lockett v.
Ohio, 438 U.S. 586, 604 (1978)) (emphasis in original). Accordingly, it is firmly established that
a defendant has a constitutional right, not only to place before the sentence any relevant evidence
in mitigation of punishment (Hitchcockv. Dugger, 481 U.S. 393 (1987); Skipper v. South
Carolina, 476 U.S. 1 (1986)), but to have the sentencer meaningfully consider and give effect to
all relevant mitigating circumstances. Abdul-Kabir v. Quarterman, 530 U.S. 223 (2007).
5. In order to ensure that these constitutional requisites under the Eighth Amendment are
fully realized, defense counsel has an obligation to thoroughly investigate his or her client's life
history for mitigating evidence. See Williams v. Taylor, 529 U.S. 362, 396 (2000). While
Strickland v. Washington, 466 U.S. 668, 691 (1984), creates a general presumption of validity of
counsel's informed strategy decisions, the Supreme Court of the United States specifically
imposed a duty on counsel to conduct a reasonable investigation before making strategic
3
App. 038
Case 5:00-cv-05020-KES Document 313-1 Filed 03/09/16 Page 4 of 13 PageID #: 4597
judgments. Counsel's decisions in this case are reasonable only if based upon a reasonable
investigation:
Choices made after less than complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the limitations on investigation. In other
words, counsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary. In any ineffectiveness case, a
particular decision not to investigate must be directly assessed for reasonableness in all
the circumstances, applying a heavy measure of deference to counsel's judgments.
Id. at 691. Where facts known to counsel suggest particular investigation would be fruitful, the
failure to investigate results from "inattention, not reasoned strategic judgment." Wiggins v.
Smith, supra, 539 U.S. at 526. Thus, if evidence in support of a defense to the charge or
mitigation of punishment is potentially available to a defendant based upon the foregoing legal
framework, counsel is under an affirmative duty to conduct a reasonable investigation into that
evidence.
6. The duty to conduct a thorough mitigation investigation is an integral part of the
standards for performance of counsel in death penalty cases under the Sixth and Fourteenth
Amendments. The Supreme Court of the United States, in several cases, has found trial defense
counsel ineffective for failure to investigate potential mitigating evidence. In Williams v. Taylor,
supra, the Court found trial counsel ineffective for failing to investigate readily available
mitigation evidence. In Wiggins v. Smith, the Court found trial counsel ineffective for limiting
their investigation to a narrow set of records, and noted that "standard practice in Maryland in
capital cases at the time of Wiggins' trial included the preparation of a social history report."
Wiggins, supra, at 524. In Rompilla v. Beard, 545 U.S. 374, 391 (2005), trial counsel were
found ineffective for failing to follow up on "red flags" in school, medical and prison records
that pointed to the need for further mental health testing. The Court further found that counsel
had a duty in tum to follow up on the findings in those records and obtain additional records,
4
App. 039
Case 5:00-cv-05020-KES Document 313-1 Filed 03/09/16 Page 5 of 13 PageID #: 4598
including Rompilla's juvenile records. It was also found unreasonable for the trial attorneys to
limit their investigation to interviewing Rompilla's parents and two of his five siblings. As a
result of this narrow, incomplete investigation, the three mental health experts retained by
Rompilla's trial counsel concluded, erroneously, that Mr. Rompilla was anti-social and did not
suffer from any mental disease. A later, thorough investigation produced evidence establishing
that Rompilla suffers from Fetal Alcohol Syndrome, borderline mental retardation, and possibly
schizophrenia and post-traumatic stress disorder. In Porter v. McCollum, 558 U.S. 30 (2009)
and Sears v. Upton, 130 S.Ct. 3259 (2010), the Court found that state court decisions denying
ineffective assistance of counsel claims were objectively unreasonable where trial counsel
abandoned potentially fruitful avenues of mitigating evidence without investigating them.
7. In Strickland, supra, the Court recognized that "[p ]revailing norms of practice as
reflected in American Bar Association stands and the like, e.g., ABA Standards for Criminal
Justice 4-1.1 to 4-8.6 (2d ed. 1980) ("The Defense Function"), are guides to determining what is
reasonable." In Wiggins, the Court again recognized the ABA Guidelines for the Appointment
and Performance of Counsel in Death Penalty Cases as "[p]revailing norms of practice" that
serve as "guides to determining what is reasonable" in evaluating the performance of capital
defense counsel. Wiggins, supra, at 522, 524. Although professional standards are "only
guides," Strickland, supra, at 688, and not "inexorable commands," Bobby v. Van Hook, 558
U.S. 4, 8 (2009), "these standards may be valuable measures of the prevailing professional norms
of effective representation." Padilla v. Kentucky, 559 U.S. 356, 367 (2010). The ABA
Guidelines have been cited with approval repeatedly by the Supreme Court as reflecting
prevailing norms that serve as guides to determining what is reasonable. See Williams v. Taylor,
supra, at 396; Rompilla, supra, at 387.
5
App. 040
Case 5:00-cv-05020-KES Document 313-1 Filed 03/09/16 Page 6 of 13 PageID #: 4599
8. The ABA Guidelines (rev. ed. 2003) state unequivocally that lead counsel at any stage
of capital representation (trial or post-conviction) should assemble a defense team as soon as
possible with no fewer than two lawyers, one investigator, and one mitigation specialist, which
should contain at least one member qualified by training and experience to screen individuals for
the presence of mental or psychological disorders or impairments. Guideline 10.4. See also
Guideline 10.11 ("As set out in Guideline 10.7(A), counsel at every stage of the case have a
continuing duty to investigate issues bearing upon penalty and to seek information that supports
mitigation or rebuts the prosecution's case in aggravation"). Similarly, the previous Guidelines
adopted in 1989 (and which were in effect at the time of Petitioner's trial) required counsel to
begin investigation immediately upon counsel's entry into the case and "to discover all
reasonably available mitigating evidence" and retain experts for investigation and preparation of
mitigation. Guideline 11.4.l (1989). Notably, the 1989 Guidelines specifically stated that "the
investigation for preparation of the sentencing phase should be conducted regardless of any
initial assertion by the client that mitigation is not to be offered." Id. One expert in professional
performance standards has noted that "the core principles expressed in the ABA Guidelines,
commentary, and Supplementary Guidelines are no more than detailed, contextualized
explanations of counsel's existing obligations under the Model Rules of Professional Conduct."
Lawrence J. Fox, Capital Guidelines and Ethical Duties: Mutually Reinforcing Responsibilities,
36 HOFSTRA L. REV. 775, 776 (2008) (italics in original).
9. Even though the responsibility for conducting a thorough investigation of the
defendant's life history squarely on the shoulders of defense counsel, counsel cannot fulfill that
function without qualified help. In Rompilla, supra, although the Court observed that Mr.
Rompilla was represented by "two committed criminal defense attorneys," 545 U.S. at 396, and
6
App. 041
Case 5:00-cv-05020-KES Document 313-1 Filed 03/09/16 Page 7 of 13 PageID #: 4600
Rompilla' s wife had referred to his lawyers as "superb human beings" who fought hard for her
husband, id. at 399, the Court nevertheless found their performance deficient and prejudicial.
The two lawyers were assisted by an experienced investigator who helped them question
Rompilla about his upbringing and background, and they arranged for Rompilla to be examined
by "the best forensic psychiatrist around here, [another] tremendous psychiatrist and a fabulous
forensic psychologist." Id. at 398. Yet, notwithstanding trial counsels' talent and work ethic, it
was undisputed that they failed to uncover significant mitigating evidence in Mr. Rompilla' s life
history that ultimately persuaded decisionmakers to spare his life. The Court provided a
summary of the evidence that Rompilla's attorneys, investigators and mental health experts
failed to uncover:
Rompilla's parents were both severe alcoholics who drank constantly. His mother drank
during her pregnancy with Rompilla, and he and his brothers eventually developed
serious drinking problems. His father, who had a vicious temper, frequently beat
Rompilla's mother, leaving her bruised and black-eyed, and bragged about his cheating
on her. His parents fought violently, and on at least one occasion his mother stabbed his
father. He was abused by his father who beat him when he was young with his hands,
fists, leather straps, belts and sticks. All of the children lived in terror. There were no
expressions of parental love, affection or approval. Instead, he was subjected to yelling
and verbal abuse. His father locked Rompilla and his brother Richard in a small wire
mesh dog pen that was filthy and excrement filled. He had an isolated background, and
was not allowed to visit other children or to speak to anyone on the phone. They had no
indoor plumbing in the house, he slept in the attic with no heat, and the children were not
given clothes and attended school in rags.
Id., at 391-392. This is the type of evidence critical to "a reasoned moral response to the
defendant's background, character, and crime." Penry v. Lynaugh, 492 U.S. 302, 319 (1989)
(quoting California v. Brown, 479 U.S. 538, 545 (1987) (O'Connor, J., concurring).
10. The trial lawyers, investigator and mental health experts in Rompilla also failed to
find significant life history records which "pictured Rompilla's childhood and mental health very
differently from anything defense counsel had seen or heard." Rompilla, supra, at 390. Mental
7
App. 042
Case 5:00-cv-05020-KES Document 313-1 Filed 03/09/16 Page 8 of 13 PageID #: 4601
health experts found "plenty of 'red flags'" in school, medical, and prison records "pointing up a
need to test further." Id. Indeed, further testing established that Rompilla "suffers from organic
brain damage, an extreme mental disturbance significant impairing several of his cognitive
functions." Id. Experts also found that "Rompilla's problems relate back to his childhood, and
were likely caused by fetal alcohol syndrome [and that] Rompilla's capacity to appreciate the
criminality of his conduct or to conform his conduct to the law was substantially impaired at the
time of the offense." Id. An appropriately-skilled investigation into Mr. Rompilla's life history
made a substantial difference in the mitigation case that could have been presented - skills that
Rompilla' s defense team lacked, and which a qualified mitigation specialist would have brought
to the case.
11. Similarly, in Mr. Rhines's case, the evidence developed by trial counsel
encompassed only a narrow set of sources. No social history report has ever been prepared.
Even within the narrow set of records obtained by counsel, there are obvious "red flags" pointing
to the need, not only for a thorough life history investigation, but for further mental health
testing, which counsel - including state habeas corpus counsel - failed to follow up on or
investigate. No independent mitigation investigation was conducted by state habeas corpus
counsel.
12. Attached to this motion is the curriculum vitae of neuropsychologist Robert D.
Shaffer, Ph.D (Exhibit A), as well as a list from Dr. Shaffer entitled "Conditions Required for
Jail Evaluation" (Exhibit B), which sets forth the circumstances he requires to conduct an
effective, comprehensive neuropsychological evaluation.
13.
Learned counsel previously attempted to schedule a neuropsychological
evaluation of Mr. Rhines by Dr. Shaffer in October 2015. Also attached to this motion is an
8
App. 043
Case 5:00-cv-05020-KES Document 313-1 Filed 03/09/16 Page 9 of 13 PageID #: 4602
email that undersigned counsel received from Ms. Catherine Schlimgen, an attorney for the
South Dakota Department of Corrections, on October 1, 2015, denying learned counsel's request
for Dr. Shaffer to be able to conduct a comprehensive neuropsychological evaluation of
Petitioner on October 8 and 9, 2015. (Exhibit C). Undersigned counsel received this email after
the repeated efforts of Ms. Jann Brakke, a paralegal employed by the Federal Public Defender's
office in Sioux Falls, South Dakota, to communicate with Jameson personnel about Dr. Shaffer's
evaluation protocol proved to be unsuccessful.
14.
Upon receiving Ms. Schlimgen's email on the morning of October 2, 2015,
learned counsel called Ms. Schlimgen twice, once at approximately 10 a.m. and again at 11 :44
a.m., requesting that Ms. Schlimgen contact her as soon as possible to determine whether
undersigned counsel could satisfactorily address the Department of Corrections' concerns about
Dr. Shaffer's protocol.
15.
Ms. Schlimgen returned learned counsel's telephone call on the afternoon of
October 5, 2015. After this conversation, Ms. Schlimgen sent an email to learned counsel
(Exhibit D) outlining the additional information that the South Dakota Department of
Corrections needed to address any security concerns that may arise as a result of the requested
evaluation.
16.
Ms. Schlimgen's rationale for denying Dr. Shaffer access to the prison to evaluate
Petitioner was based upon a narrow reading of SDCL §23A-27 A-31.1, which identifies the
individuals who are allowed access to a prisoner without a court order. Specifically, this
statutory provision allows "the defendant's counsel" to access an incarcerated client.
Undersigned counsel respectfully contends that an expert such as Dr. Shaffer, who has been
specifically retained by defense counsel to evaluate Petitioner, is a member of the defense team
9
App. 044
Case 5:00-cv-05020-KES Document 313-1 Filed 03/09/16 Page 10 of 13 PageID #: 4603
and an agent of defense counsel and therefore should not be required to obtain a court order to
gain access to Petitioner in order to conduct a comprehensive neuropsychological evaluation.
See, e.g., ABA Guidelines, Guideline 4.l(A)(2)(rev. ed. 2003)(mandating that "[t]he defense
team should contain at least one member qualified by training and experience to screen
individuals for the presence of mental or psychological disorders or impairments"); Guideline
10.4(C)(2)(c)(rev. ed. 2003)(stating that the defense team includes "any other members needed
to provide high quality representation").
17.
Moreover, as the October 1, 2015 letter from Dr. Shaffer to Petitioner's counsel
Tim Langley, (attached hereto as Exhibit E) explains, "[f]ree range of hand motion for both
hands, and use of a variety of computing and electronic players" are necessary to ensure that a
competent, comprehensive neuropsychological evaluation of Petitioner can be achieved. Exhibit
Eat 2. The equipment that Dr. Shaffer is requesting to bring into the Jameson unit, as well as his
request that Petitioner's hands be unshackled during the evaluation, are essential to
accomplishing this objective.
18.
The requested evaluation was unable to be scheduled in October 2015 due to the
delayed response received from the South Dakota Department of Corrections, as well as learned
counsel's surgery on October 7, 2015. Undersigned counsel have renewed their request to
schedule a neuropsychological evaluation of Mr. Rhines by Dr. Shaffer for March 16-18,
March 29-30, or April 26-28, 2016. Undersigned counsel Timothy Langley has corresponded
with Ms. Schlimgen by phone and by email to discuss the testing protocol. Additionally, on
March 1, 2016 at approximately 2:07 p.m., learned counsel attempted to contact Ms. Schlimgen
but was unable to reach her. Learned counsel also emailed Ms. Schlimgen the photographs of Dr.
Shaffer's testing equipment and his requirements for hands-free testing that she had previously
10
App. 045
Case 5:00-cv-05020-KES Document 313-1 Filed 03/09/16 Page 11 of 13 PageID #: 4604
requested. A copy of learned counsel's March 1, 2016 email to Ms. Schlimgen, as well as copies
of the photographs of Dr. Shaffer's testing equipment that were attached to it, is attached hereto
as Exhibit F. In an email received at 4:00 p.m. on March 3, 2016, South Dakota Department of
Corrections Attorney Catherine Schlimgen wrote: "when I spoke to [Petitioner's counsel] Tim
[Langley], I believed we discussed the motion being filed in federal court. However, in
reexamining SDCL 23A-27 A-31.1, the statute says the order must come from the trial judge."
Petitioner does not agree with this reading of the statute. First, the statute is located in the section
of Chapter 23A that addresses the protocol for lethal injection once a prisoner has an active,
pending execution warrant, which is not true in the instant case. Second, the statute does not say
state trial court. Third, the state trial court no longer has jurisdiction over Petitioner's habeas
proceedings: this Court does.
19.
Although counsel for Petitioner and prison administration officials have been
making reasonable efforts to accommodate the needs of the other party in settling the details of
the examination protocol, and given that prison administration officials have advised Petitioner's
counsel that a court order pursuant to SDCL 23A-27A-31.1 authorizing Dr. Shaffer to have
exceptional access to the Petitioner for the purpose of conducting the evaluation is required, and
due to the expert's availability as well as to the limited time frame within which this Court will
continue to have jurisdiction over Petitioner's case, counsel for Petitioner respectfully request
that this Court enter the proposed Order contained herein.
20.
In order to perform a valid comprehensive neuropsychological evaluation of Mr.
Rhines, Dr. Shaffer requires that both of Mr. Rhines's hands be unshackled for three tests lasting
a total of approximately 20 minutes. Additionally, Dr. Shaffer needs to administer tests that
require Mr. Rhines to alternate the use of his hands (which requires that the hand currently being
11
App. 046
Case 5:00-cv-05020-KES Document 313-1 Filed 03/09/16 Page 12 of 13 PageID #: 4605
used to be unshackled) for approximately three and one-half hours. The remaining estimated four
hours of testing requires that Mr. Rhines's dominant hand remain unshackled so that the test
results will be valid. Undersigned counsel do not object to a correctional officer being present in
the examination room during the twenty minutes that require both of Mr. Rhines's hands to be
unshackled.
WHEREFORE, for the foregoing reasons, undersigned counsel respectfully request that
this Court enter an Order allowing Robert D. Shaffer, Ph.D, access to the Jameson Unit located
in Sioux Falls, South Dakota, on March 16-18, March 29-30, or April 26-28, 2016, pursuant to
the conditions set forth in Exhibit B, including administering hands-free testing and/or one hand
free testing when required, to conduct a comprehensive neuropsychological evaluation of
Petitioner in accordance with prevailing professional and ethical standards. Additionally, if the
Court needs to hear additional argument before it can make a decision, Petitioner requests the
Court set an expedited hearing in order to ensure that the evaluation can be completed in a timely
fashion, and grant Petitioner leave to supplement the record in this matter and the State
additional time to respond if necessary.
Dated this 9th day of March, 2016.
Respectfully submitted,
NEIL FULTON
Fed~· ublic
( ::
v
/
Timot
12
App. 047
Case 5:00-cv-05020-KES Document 313-1 Filed 03/09/16 Page 13 of 13 PageID #: 4606
e · oner Charles Russell Rhines
ederal Public Defender
Districts of South Dakota and North Dakota
200 W. 10th Street, Suite 200
Sioux Falls, SD 57104
Phone 605-330-4489; Fax 605-
OJ
I
<
!
13
App. 048
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CHARLES RUSSELL RHINES,
5:00-CV-05020-KES
Plaintiff,
MEMORANDUM OPINION AND
ORDER
vs.
DARIN YOUNG, Warden, South Dakota
State Penitentiary;
Defendant.
Petitioner, Charles Rhines, moves the court to seal his motion for expert
access and his reply brief
from this court allowing Dr. Robert D. Shaffer to conduct a neuropsychological
examination of Rhines. Respondent opposes the motions to seal and the motion
for expert access. For the following reasons, the court denies the motions to
seal and denies the motion for expert access.
BACKGROUND
The procedural history of this case is
February 16, 2016 order granting summary judgment in favor of respondent.
Rhines is a capital inmate at the South Dakota State Penitentiary in
Sioux Falls, South Dakota. He was convicted of premeditated first-degree
murder for the death of Donnivan Schaeffer and of third-degree burglary of a
App. 049
should be subject to death by lethal injection, and a state circuit court judge
imposed
corpus. On March 9, 2016, Rhines moved the court for an order allowing Dr.
Schaffer to conduct a comprehensive neuropsychological evaluation of Rhines
at the penitentiary.1
Rhines argues that Dr. Shaffer should be permitted to conduct his
examination because Dr.
federal habeas proceeding. Dr. Shaffer requires as a part of his examination
hands during several tests. Rhines argues that he attempted to schedule the
evaluation through the South Dakota Department of Corrections (DOC), but
DOC personnel insist that Rhines first obtain a court order before Dr. Shaffer
can be given access to Rhines at the prison.
the reason Dr. Shaffer cannot receive the type of access that Rhines requests is
because of prison safety concerns. More specifically, DOC policy requires that
capital inmates such as Rhines remain restrained in the presence of visitors.
DOC personnel are
incarcerated and believe that he may pose a danger to others.
1 Rhines filed a substantively similar motion on March 7, 2016. Docket
310. The present motion is styled as an amended motion. Thus, the court
considers the March 7 motion mooted by the filing of the amended motion.
2
App. 050
DOC personnel also argue and respondent agrees that Dr. Shaffer
cannot be given access to Rhines for any reason unless Rhines complies with
SDCL 23A-27A-31.1. That statute provides:
From the time of delivery to the penitentiary until the infliction of
the punishment of death upon the defendant, unless lawfully
discharged from such imprisonment, the defendant shall be
segregated from other inmates at the penitentiary. No other person
may be allowed access to the defendant without an order of the trial
court except penitentiary staff, Department of Corrections staff, the
defendant's counsel, members of the clergy if requested by the
defendant, and members of the defendant's family. Members of the
clergy and members of the defendant's family are subject to
approval by the warden before being allowed access to the
defendant.
SDCL 23A-27A-31.1 (emphasis added). Respondent contends that Dr. Shaffer
that DOC personnel do not have the authority to grant Dr. Shaffer access to
Rhines. Rather, Rhines must first obtain a court order. Although Rhines
2 Rhines asks this court to issue an
order allowing Dr. Shaffer to conduct his examination.
2
because Dr. Shaffer has been hired as an expert. The court is unaware of any
authority interpreting SDCL 23A-27A-31.1. The court concludes that the
the individuals who can be given access to a capital inmate without a court
order.
is limited to
include other members of the defense
team generally.
3
App. 051
DISCUSSION
I.
Motions to Seal
Rhines originally filed his motion for expert access ex parte. The court
denied the motion and directed Rhines to serve a copy of the motion on
respondent b
the legitimate penological
interests of the state of South Dakota. Rhines now requests that his motion
and his reply brief be sealed because their contents implicate the attorneyclient privilege or attorney work product doctrine.
documents, including judicial records and documen
In re Neal, 461 F.3d
1048, 1053 (8th Cir. 2006) (quoting Nixon v. Warner Commc'ns, Inc., 435 U.S.
589, 597 (1978)). The public right, however, is not absolute. Id. (quoting id. at
598). The
the most compelling reasons can
justify non-
Id. (quoting In re Gitto Global Corp.,
422 F.3d 1, 6 (1st Cir. 2006)). Whether court records should be sealed is a
matter committed to the discretion of the district court. Webster Groves Sch.
Dist. v. Pulitzer Pub. Co., 898 F.2d 1371, 1376 (8th Cir. 1990).
Generally, the attorney-client privilege extends to confidential
communications exchanged between a client and his or her attorney. See In re
Grand Jury Proceedings, 791 F.2
communications encompass that information communicated on the
understanding that it would not be revealed to others[.] Id. By contrast, the
work product doctrine protects factual information compiled by an attorney or
4
App. 052
Baker v. Gen. Motors Corp., 209 F.3d 1051, 1054 (8th Cir. 2000). A
show the materials were prepared in anticipation of litigation, i.e., because of
the prospect
PepsiCo, Inc. v.
Baird, Kurtz, & Dobson LLP, 305 F.3d 813, 817 (8th Cir. 2002).
Rhines argues only generally that the attorney-client privilege or the
work product doctrine applies.
motion and reply consists
Rhines presumably included this information as legal authority for why his
motion should be granted. The arguments do not, however, involve
communications between an attorney and Rhines. Similarly, they are not
entitled to work product protection any more than an ordinary brief to the
court.
submissions consists of
personnel discussing whether Dr. Shaffer will be allowed to conduct his
examination.
descriptions of the tests he would perform. These emails are not attorney-client
communications but rather communications involving third-parties to which
the privilege does not apply. United States v. Hatcher, 323 F.3d 666, 674 (8th
Cir. 2003). Likewise, the communications are not entitled to work product
protection because they are not materials prepared in anticipation of litigation.
5
App. 053
bare desire for secrecy
II.
Thus,
Motion for Expert Access
Rhines argues that this court may enter an order under SDCL 23A-27A-
31.1 and direct the DOC to give Dr. Shaffer access to Rhines at the
penitentiary. The court disagrees. Rhines is confined in a state penitentiary,
not a federal penitentiary. The statute that Rhines contends authorizes access
is a state law, not a federal law. It provides
before those persons can be
court is the Circuit Court for the Seventh Judicial Circuit of South Dakota.
Rhines has not attempted to obtain an order from the state trial court.
Principles of comity and federalism caution against the assertion of
power by one sovereign over another without a clear grant of that authority in
the first instance. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 422
(2003). Congress enacted [the Antiterrorism and Effective Death Penalty Act of
1996] to reduce delays in the execution of state and federal criminal sentences,
particularly in capital cases and to further the principles of comity, finality,
Woodford v. Garceau, 538 U.S. 202, 206 (2003) (internal
citations and quotations omitted). Also, the
not
must accord substantial deference to the
professional judgment of prison administrators, who bear a significant
6
App. 054
responsibility for defining the legitimate goals of a corrections system and for
determining the most appropriate means to accomplish them
Overton v.
Bazzetta, 539 U.S. 126, 132 (2003); see also Procunier v. Martinez, 416 U.S.
utions are involved, federal
courts have a further reason for deference to the appropriate prison
overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401
(1989). The court concludes that SDCL 23A-27A-31.1 does not authorize this
court to grant Rhines the access he requests.
Rhines has not otherwise provided a statute or rule of law that enables
this court to direct the DOC to provide Dr. Shaffer access to Rhines at the
penitentiary. Rather, Rhines
Amendment right to receive the effective assistance of counsel. There is not,
however, a constitutional right to counsel in federal habeas actions. Ryan v.
Gonzales, 133 S. Ct. 696, 703-04 (2013). Section 3599(a)(2) of title 18 provides
a statutory right for indigent capital inmates to receive federally funded
representation and investigative services. 18 U.S.C. § 3599(a)(2). The court may
se of
hiring an expert to conduct a mental health examination. 18 U.S.C. § 3599(f);
see Edwards v. Roper, 688 F.3d 449, 462 (8th Cir. 2012). But Rhines is not
asking for additional funds, however, and nothing in the statute enables the
court to command state prison personnel in the manner Rhines suggests. Cf.
Baze v. Parker, 711 F. Supp. 2d 774, 779 (E.D. Ky. 2010) (holding § 3599(f)
not give the Court the authority to issue an order granting a defendant
7
App. 055
access to certain state officials or others in the hopes that they will provide
information relevant to the clemency process
632 F.3d 338 (6th Cir.
2011).
Shaffer should be allowed to
omponent
Rhines received ineffective
assistance of counsel because his state court trial attorneys inadequately
investigated and presented mitigating evidence. See Docket 313-1 at 8
Even if this court had the authority
it
would decline to exercise that authority for several reasons. First, the court has
federal habeas relief, including his
ineffective assistance claims. See Docket 305 at 81-117. Second, Rhines was
denied leave previously to supplement the record and to amend his federal
habeas petition to include new evidence in support of his exhausted ineffective
assistance claims.3
affidavits from three experts who
have reviewed
and who made their own
findings and conclusions concerning Rhines, his background, his mental
3
exception for presenting unexhausted ineffective assistance claims announced
in Martinez v. Ryan, 132 S. Ct. 1309 (2012),
Docket 272 at 12-13; Docket 304 at 16-20.
8
App. 056
Docket 304 at 8. Dr. Shaffer was one of those experts who submitted an
affidavit and related findings. Docket 281-2; Docket 282-2. The court denied
s
Cullen v.
Pinholster, 563 U.S. 170 (2011). Specifically, the court found that
Pinholster. Here, like in
Pinholster, Rhines argued that his trial attorneys ineffectively
investigated and presented mitigation evidence. As in Pinholster,
state habeas. Similar to Pinholster, Rhines was permitted to return
petition contained both exhausted and unexhausted claims. As in
Pinholster, Rhines received an adjudication on the merits of all of
his claims in state court before returning to federal court. And
now, like in Pinholster, Rhines seeks to bolster his exhausted
ineffective assistance claims with new evidence that was not
presented to or considered by the state court. Just like in
Pinholster, this new evidence consists of contemporary expert
investigate and present additional mitigation evidence. But, as the
Court held in Pinholster
claims is subject to § 2254(d) and is limited to the evidence that
was before the state court that adjudicated the claims.
Docket 304 at 18Id. at 22
Finally
would obtain the same result. Section 2254(e)(2) governs the circumstances in
which an evidentiary hearing may be held. Williams v. Taylor, 529 U.S. 420,
437 (2000). That section provides:
(2) If the applicant has failed to develop the factual basis of a claim
in State court proceedings, the court shall not hold an evidentiary
hearing on the claim unless the applicant shows that
9
App. 057
(A) the claim relies on-(i) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that
was previously unavailable; or
(ii) a factual predicate that could not have been
previously discovered through the exercise of due
diligence; and
(B) the facts underlying the claim 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. § 2254(e)(2).
s]ection 2254(e)(2)
imposes a limitation on the discretion of federal habeas courts to take new
Pinholster, 563 U.S. at 186.
n in Wright v. Bowersox, 720 F.3d 979 (2013)
is instructive on this issue. The Wright decision involved a § 2254 petitioner
who waived his right to counsel and was allowed to represent himself at trial.
Id. at 982. He was convicted by a jury. Wright argued in state and federal
habeas that the state trial court erred in determining that he was competent to
stand trial and to waive his right to counsel. Id. at 982-83. Wright also moved
for an evidentiary hearing in federal court to present testimony and a report
from Dr. Stephen Peterson in support of his argument that he was not
competent at the time of his trial. Id.
request, and the Eighth Circuit affirmed. The Eighth Circuit held
10
App. 058
Second,4 this hypothetical rebuttal evidence, even if it were to
prove Wright's incompetence, would still not entitle him to habeas
relief on his asserted grounds. Even assuming Dr. Peterson's
testimony demonstrated Wright to have been incompetent at the
time of his trial and waiver of counsel, the testimony was not
available to the state court at the time of its decision. Accordingly,
this testimony would have no bearing on whether the state court's
decision was based on an unreasonable determination of the facts
because the testimony was not available for consideration by the
state court. Cullen v. Pinholster,
U.S.
, 131 S.Ct. 1388,
1398 1401, 179 L.Ed.2d 557 (2011).
Id.
granted Rhines an evidentiary hearing.
CONCLUSION
Rhines has not attempted to comply with the state statute governing
access to capital inmates in the state penitentiary. Rhines has also not
identified an applicable statute or rule of law enabling this court to direct the
DOC personnel to give Dr. Shaffer access to Rhines in lieu of complying with
the state statute. And assuming the court has the authority to do so, Rhines
has not identified adequate grounds justifying the relief that he seeks.
Accordingly, it is
ORDERED that
and
Docket 315) is denied. The motions will be unsealed in five days, unless they
are withdrawn within five days.
4
Wright, 720 F.3d at 987; see 18
U.S.C. § 2254(e)(2). Rhines has similarly not made such a showing.
11
App. 059
IT I
(Docket 313-1) is denied.
Dated April 12, 2016.
BY THE COURT:
/s/Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
12
App. 060
App. 061
App. 062
App. 063
App. 064
App. 065
App. 066
App. 067
App. 068
App. 069
App. 070
App. 071
App. 072
App. 073
App. 074
App. 075
App. 076
App. 077
App. 078
App. 079
App. 080
App. 081
App. 082
App. 083
App. 084
App. 085
App. 086
s.e!,en$ luùfcfst @írmft 6ourt
P.O. Box 230
Rapid City SD 57709-A230
(6os) 394-2s7t
CIRCUITJUDGES
Craig A. Pfciflq Presiding ludgc
Matthew M. Brown
Jeffrey R, Connolly
JeffW. Davis
MAGTSTRATE JUDGES
Kristi W. Erdman
Todd J. Hyronimus
Bemard Schuchmann
Marya Tellinghuisen
STAFF ATTORNEY
Robert Gusinsþ
.
COURT ADMINISTRATOR
Scott M. Bogue
Laura Hilt
Heidi L. Linngren
Robert A. Mandel
Janc Wipf Pfeifle
ctober 24,2017
/Mr.Jason Tupman
Office of the Federal Public Defender
Districts of South Dakota and North Dakota
200 r0V; 106 Street, Suite 200
Sioux Falls, SD 57104
Mr. Paul Swedlund
Ofüce ofthe Attorney General
1302 East Highway 14, Suite I
Pierre, SD 57501
Re: Case no. 51C93-00008140
Dear Counsel:
The Court is in receipt of submissions from both parties r€garding Defendant's Motion for
Expert Access (filed 619117) for the purposes of a clemency application. Defendant, Charles
Rhines, requests permission to be evaluated by two mental health experts.' In support of the
Motion, Defendant (1) sets forth a due process argument and (2) requests that the Court exercíse
discretionary authority under SDCL 23 A-27 A-31 . I . The State opposes Defendant's request. For
the reasons that follow, the Motion is denied.
I
Counsel for Defendant states that "Mr. Rhines is not seeking funding fiom this Courl His federal counset are
representing him pursuant to appointments by the federal disFictcourt. This motipn seeks only access for tl¡e
experts already retained by his counsel." Petitioner's Reply Memorandum in Support of Motion for Expert
Access, p. I n. I (filed 6f23ll7).
App. 087
1. Due Process
Defendant "maintains that he has a due process right to expert assistance to investigate his
9l91e1cypetition." Petitioner's Reply Memoranduniin Suppãrt of Motion for Expert Access, p.
3^qle! 6!23117). In the case of Ohio Adutt Parole AuthoriÇ v. l[/oodard, 523 U.S: Z7Z, ¡ 8
S.ct. 1244,140 L.Ed.2d 387 (1998), the United Stares Supieme Court discussed due piocess in
the context of clemency proceedings. The Eighth Circuit öourt of Appeats summarizes the
opinion as follows:
In Ohio Adutt Parole Á.uthoríty v. lVoodard, SZ¡ U.S. 272, ll8 S.Ct. lZ44,l4O
L.Ed.2d 387 (199S), the Supreme Court addressed the application of the Due
Process Clause to state clemency proceedings. A splintered óourt rejected a claim
that Ohiois clemency proceedingi violated ãn ironät"'* constitutionä .igttt to due
plocls. A plurality of four Justices emphasized that a request for clemenoy "is
-C.J.)
simply a unilateral hope," íd. at282,l tS S.Ct. 1244 (opinion of Rehnquist,
.
(internal quotation omitted), and suggesæd that the Due Process Clause has no
application t9 th" discretionary clemency process. A concurring opinion of four
Justices concluded that "some mínímar prócedural safeguards upptj, to clemency
proceedings," íd. at289, 118 s.ct; 1244 (o'connor, J., concurring in part anã
cgnguning in the judgment) (emphasis in original), but rejected the ìnmate's .
challenge to Ohio's procedures. Justice O'-Connor wroie that "fiJudicial
intervention n-rigfrt, for example, be wananted in the face of a scheme whäreby a
state official flipped a coin to determine whether to grant clemency, or in a case
where the State arbjtrarily denied a prisoner any acceis to its clemðncy process."
Id. Aseparate opinion of Justice Stevens agreed with Justice O'Connoi that some
minimal procedural safeguards apply. Id. úzgo-gl, llg s.ct.lz44 (srevens, J.,
concurring in part and dissenting in part).
Win/ìeldv. Steele,75s F.3d 629,630-31 (Sth Cir.2014). After summarizingthe \Iloodward
opinion, the l|rin/ìeld court went on to indicate that in túe context of clemen-cy proceedings there
Tlgltt e1þ1qo_me minimal procedural sàfeguards under the Due Process Clause. Wínfìetõ7Ss
ft3d at 630 ("Whatever minímal procedurál safeguards might be guaranteed by th" úu. process
9f"ry: 1." 9le19nc¡ p¡oceedíng are likcly satisfied here.'j In Nlet v. Nomìs,'336 F.3d 648 (Bth
Cir, 2003), the Eighth Circuit addressed whether due procéss was violated when a request toìundergo a particular kind of brain-scan procedure in connection with a clemency appiication'was
denied:
,i',
Because clemency is extended mainly as a matter of grace, and the power to
9rant it is vested in the executive prerogative, it is a rare case that presents a
successful due process challenge to clemency procedures themselves , See
Ohio
ì
Adult Parole Auth. v. Iiloodard, s23 u.s. 272,-zg0-gl, l lg s.ct,lz44,l4o
L.Ed.2d 387 (1998). On the other hand, if the state actively interferes with a
prisoner's access to the very system that it has itself established for considering
petitions, due process is violated. see young v. Hayes,2l g F.3d s50;
:l-em.en9y
853 (8th Cir.2000).
App. 088
Mr. Noel's claim seems to be a kind of amalgam. He asserts that state ofücials
did not give him enough time to prepare for his clemency hearing and that the
state would not allow him to undergo a particular kind of brain-scan procedure to
prove his assertion that his brain damage ought to be considered on the question
of whether he deserved clemency.
We think that Mr. Noel's claim must be rejected. He presented a four-hundred
page record to the state authority charged with making recommendations
conceming clemency, and that authority denied his request. The materials that he
presented insluded some evidence, though not the particular evidence that Mr.
Noel sought to produce, of his brain damage. He does not claim that he was
prevented from presenting any other kind of evidence. In the circumstances, we
cannot say that the process lvas so arbitrary as to be unconstitutional or that the
state prohibited Mr. Noet from using the procedure that it had established
Noel,336F.3d at 649. Similar to the defendant inNoel,Mr. Rhines would like to undergo
medical evaluation in connection with a clemency application and has access to some evidence
regarding mental healtb though not the particular
he is requesting.2 Based on Noel, this
"ùdrnce
professionals
Court concludes that access to the mental hgalth
is not requi¡ed under "[w]hatever
minimal procedural safeguards might be guaranteed by the Due Process Clause in a cleinency
proceeding. . . .* llin/ìe\d,755 F.3d at 631.
2. SDCL 23A-27AALL
Defendant asks the Court to exercise disoretionary authority under SDCL 23A-27A-31.1
to grant the requested access to mental health experts. Petitioner's Reply Memorandum in
Support of Motion for Expert Access, p. 2 (filed 6t23ll7). SDCL 23AA7A-31.1 states as
follows:
From the time of delivery to the penitentiary until the infliction of the punishment
of death upon the defendant, unless lawfully discharged from such imprisonment,
the defendant shall be segregated from other inmates at the penitentiary. No other
person may be allowed access to the defendant without an order of tlie trial court
except peniæntiary staff, Department of Corrections staf{, the defendant's counsel,
members of the clergy if requested by the defendant, and members of the
defendant's family. Members of the clergy and members of the defendant's family
are subject to approval by the warden before being allowed access to the
defendant.
In support ofthe request for expert access, Defendant's counsel indicates concern for
Defendant's current mental health:
His current counsel have serious and substantial questions related to Mr. Rhines's
mental health and condition, and the review of prior records and reports has not
2
Defendant has previously been evaluated by mental health professionals in connection with court proceedings
in both state and federal court. Response to Mot¡on for Expert Access, Exhibits l-8 (filed 6/1512017).
App. 089
. resolved these questions. Granting defense mental health experts accEss to visit
and evaluate Mi. Rhines will allow counsel to look into, and possibly rule out,
counsel's mental health concems. This will enable counsel to prepare for and
advise Mr. Rhines on a range of issues, including, but not limited to, a potential
application for executive clemency, should such an application be warranted.
Motion for Expert Access p. 2 (filed 619117). Ultimately, under South Dakota law a defendært
must not to be put to deattr if found mentally incompetent to be executed, and the legislature has
provided a statutory procedure to be used when counsel has concerns regarding a defendant's
mental competency in this regard. SDCL 23A-27A-22to23A-27^-26. Consequently, sínce
counsel for Defendant may utilize the procedure provided by statute to address concems
regarding Mr. Rhines' current mental health, the Couft declines to grant the Motion under SDCL
23¡'-27A-3r.t.
ORDER
Accordingly, the Motion for Expert Access is hereby DENIED.
Dated,hûh- day of octo ber,20t7
Robert A. Mandel
Circuit Court Judge
[sEAL]
PennlnetglLsßuntv, sD
IN ORÖUIT COURT
ocÏ 2 { 2017
RanaeTr
App. 090
STATE OT SOUTH DAI(OTA
ln the Supreme Court
l, Shlrley A. Jarneson.Frrgel. 0lerk 0f lhe SupreÍìe Court of
S0uth Dakola, heteby cerlify that lhr wrthrn inslrumenl is a lrue_.
and correcl copy of the onq¡nal thcreof as the same appears 1 N
on record in my ofice. ln witness whereof, I have her'eunto set
firy tBnd and affíxed ttts seal 0l said court at pierm, S.D. lhis
--day
of_,20-clerkorsuprcrnecourt
nf:ni,l
SUPREME COt'RT ._.
TFIE SUPREME COURT
OF THE
JAN - 2 2OIB
srATE oF sourH DAKOTA
Jr"/aki¿d
,
****
ORDER DISMISSING APPEAI
STATE OF SOUTH DAKOTA,
Pl-aintiff
srArE olToIryfiDAKorA
and Appel-lee,
#28460
vs.
CHARLES RUSSELL RHTNES,
Defendant and Appellant.
Appellee having served and filed
a motion to dismiss the
appeal taken in the above-entitled matter, and appellant having served
and filed
a response thereto, ancl appellee having served and filed
a
reply in support of motion to dismiss appeal, and i-he Court having
considered the motion, response and reply/ now/ therefore, it is
ORDERED that
DATED at
the appeal be and it is hereby dismissed.
Pierre, South Dakota, this 2nd day of January,
2078.
BY THE COURT:
'\,"'l
r \'ìi ,, ì',.ì.
¡',.k'
'-l
,
',,
^,\i
na"i¿Cilbe@
, jì
J.,,,.,
"
of
Cf erkvof
the
t1te 7$úpreme
þópreme Court
(SEAI)
(SE
(.fustice Janine M. Kern disqualified.
)
,.fustices Steven L' Zinter,
Jensen
GIen A. Severson and Steven R. Jensen'
PÀRTICIPATING: Chj-ef Justice David Gilbertson,
]
]
App. 091
Case 5:00-cv-05020-KES Document 399 Filed 05/25/18 Page 1 of 24 PageID #: 7967
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.
App. 092
Case 5:00-cv-05020-KES Document 399 Filed 05/25/18 Page 2 of 24 PageID #: 7968
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
2
App. 093
Case 5:00-cv-05020-KES Document 399 Filed 05/25/18 Page 3 of 24 PageID #: 7969
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
3
App. 094
Case 5:00-cv-05020-KES Document 399 Filed 05/25/18 Page 4 of 24 PageID #: 7970
(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.
4
App. 095
Case 5:00-cv-05020-KES Document 399 Filed 05/25/18 Page 5 of 24 PageID #: 7971
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
5
App. 096
Case 5:00-cv-05020-KES Document 399 Filed 05/25/18 Page 6 of 24 PageID #: 7972
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
6
App. 097
Case 5:00-cv-05020-KES Document 399 Filed 05/25/18 Page 7 of 24 PageID #: 7973
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
7
App. 098
Case 5:00-cv-05020-KES Document 399 Filed 05/25/18 Page 8 of 24 PageID #: 7974
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.
8
App. 099
Case 5:00-cv-05020-KES Document 399 Filed 05/25/18 Page 9 of 24 PageID #: 7975
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,
9
App. 100
Case 5:00-cv-05020-KES Document 399 Filed 05/25/18 Page 10 of 24 PageID #: 7976
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”).
10
App. 101
Case 5:00-cv-05020-KES Document 399 Filed 05/25/18 Page 11 of 24 PageID #: 7977
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,
11
App. 102
Case 5:00-cv-05020-KES Document 399 Filed 05/25/18 Page 12 of 24 PageID #: 7978
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
12
App. 103
Case 5:00-cv-05020-KES Document 399 Filed 05/25/18 Page 13 of 24 PageID #: 7979
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.
13
App. 104
Case 5:00-cv-05020-KES Document 399 Filed 05/25/18 Page 14 of 24 PageID #: 7980
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’ ”).
14
App. 105
Case 5:00-cv-05020-KES Document 399 Filed 05/25/18 Page 15 of 24 PageID #: 7981
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.
15
App. 106
Case 5:00-cv-05020-KES Document 399 Filed 05/25/18 Page 16 of 24 PageID #: 7982
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
16
App. 107
Case 5:00-cv-05020-KES Document 399 Filed 05/25/18 Page 17 of 24 PageID #: 7983
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
17
App. 108
Case 5:00-cv-05020-KES Document 399 Filed 05/25/18 Page 18 of 24 PageID #: 7984
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
18
App. 109
Case 5:00-cv-05020-KES Document 399 Filed 05/25/18 Page 19 of 24 PageID #: 7985
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
19
App. 110
Case 5:00-cv-05020-KES Document 399 Filed 05/25/18 Page 20 of 24 PageID #: 7986
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
20
App. 111
Case 5:00-cv-05020-KES Document 399 Filed 05/25/18 Page 21 of 24 PageID #: 7987
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
21
App. 112
Case 5:00-cv-05020-KES Document 399 Filed 05/25/18 Page 22 of 24 PageID #: 7988
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
22
App. 113
Case 5:00-cv-05020-KES Document 399 Filed 05/25/18 Page 23 of 24 PageID #: 7989
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.
23
App. 114
Case 5:00-cv-05020-KES Document 399 Filed 05/25/18 Page 24 of 24 PageID #: 7990
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
24
App. 115
Case 5:00-cv-05020-KES Document 402 Filed 06/21/18 Page 1 of 3 PageID #: 8007
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CHARLES RUSSELL RHINES,
Petitioner,
v.
DARIN YOUNG, Warden,
South Dakota State Penitentiary,
Respondent.
)
)
)
)
)
)
)
)
)
CIV. 00-5020-KES
PETITIONER’S NOTICE OF APPEAL
Notice is hereby given that Charles Russell Rhines, petitioner in the above-captioned
matter hereby appeals to the United States Court of Appeals for the Eighth Circuit from the
District Court’s Order Denying Motion for Leave to Amend, Denying Motion for Relief from
Judgment, and Denying Motion for Expert Access (Doc. 399) entered on May 25, 2018, denying
Mr. Rhines’s motion for leave to amend his federal habeas corpus petition or, in the alternative,
motion for relief from judgment pursuant to Fed. R. Civ. P. 60(b)(6) (see Doc. 383) and motion
for expert access (see Doc. 394), and any and all parts of the specifically listed order.
1
App. 116
Case 5:00-cv-05020-KES Document 402 Filed 06/21/18 Page 2 of 3 PageID #: 8008
Dated this 21st day of June, 2018.
Respectfully submitted,
/s/ Claudia Van Wyk
CLAUDIA VAN WYK
PA Bar # 95130
Assistant Federal Defender
Federal Community Defender Office
Capital Habeas Unit
601 Walnut Street, Suite 545W
Philadelphia, PA 19106
Telephone (215) 928-0520
Facsimile (215) 928-0826
Claudia_Vanwyk@fd.org
NEIL FULTON, Federal Public Defender
Federal Public Defender
By:
Jason J. Tupman, Assistant Federal Defender
Office of the Federal Public Defender
Districts of South Dakota and North Dakota
200 W. 10th Street, Suite 200
Sioux Falls SD 57104
Telephone: (605) 330-4489
Facsimile: (605) 330-4499
Filinguser_SDND@fd.org
Attorneys for Petitioner Charles Russell Rhines
2
App. 117
Case 5:00-cv-05020-KES Document 402 Filed 06/21/18 Page 3 of 3 PageID #: 8009
CERTIFICATE OF SERVICE
This will certify that, on June 21, 2018, a true and correct copy of the foregoing was
electronically filed with the Clerk of the Court via CM/ECF to be served on the following
persons authorized to be noticed:
Paul S. Swedlund
Matthew W. Templar
Assistant Attorneys General
State of South Dakota
1302 East Highway 14, Suite 1
Pierre, SD 57501
/s/ Claudia Van Wyk
Claudia Van Wyk
App. 118
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No: 18-2376
Charles Russell Rhines
Appellant
V.
Darin Young, Warden, South Dakota State Penitentiary
Appellee
Appeal from U.S. District Court for the District of South Dakota - Rapid City
(5:00-cv-05020-KES)
ORDER
With the district court's final order denying Charles Russell Rhines's federal
petition for a writ of habeas corpus pending on appeal, Rhines filed in the district court a
Rule 15(a)(2) motion for leave to amend the petition and a Rule 60(b) motion for relief
from judgment. The district court denied relief on the ground that Rhines was seeking
second or successive habeas relief that had not been authorized by the court of appeals,
see 28 U.S.C. § 2244(b)(3)(A), and denied a certificate of appealability. We deny
Rhines's application for a certificate of appealability from that ruling. Judge Kelly would
grant the certificate.
Rhines also filed a motion in the district court for an order requiring respondent to
produce Rhines for evaluation by mental health experts retained by the defense to support
a potential request for executive clemency, relief that the South Dakota state courts have
denied. The district court denied relief on the merits and denied a certificate of
appealability. We conclude that no certificate of appealability is required to appeal this
issue. A separate order establishing a briefmg schedule will be issued.
The motion for leave to file an amicus brief is hereby granted.
September 07, 2018
Order Entered at the Direction of the Court:
Clerk, U.S. Court of Appeals, Eighth Circuit.
Isl Michael E. Gan
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.