Opposition Brief — In Re Charles Russell Rhines, Petitioner

Supreme Court briefNov 2, 2019

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Nos. 19-6479/19A-484

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In The

Supreme Court of the United States

OCTOBER TERM 2019

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In re: CHARLES RUSSELL RHINES,

Petitioner.

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Petition For An Original Writ Of Habeas Corpus

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BRIEF IN OPPOSITION TO PETITION FOR AN ORIGINAL

WRIT OF HABEAS CORPUS

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JASON R. RAVNSBORG, South Dakota Attorney General

PAUL S. SWEDLUND, Assistant Attorney General

Counsel of Record

OFFICE OF THE ATTORNEY GENERAL

STATE OF SOUTH DAKOTA

1302 East Highway 14, Suite 1

Pierre, SD 57501-8501

Telephone: 605-773-3215

Facsimile: 605-773-4106

paul.swedlund@state.sd.us

Attorneys for Respondent Young

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CAPITAL CASE – EXECUTION SET FOR

NOVEMBER 4, 2019, AT 1:30 P.M.

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QUESTION PRESENTED

Whether Rhines’ allegations of homophobic jury bias present

exceptional circumstances warranting the extraordinary remedy of an

original writ of habeas corpus.

TABLE OF CONTENTS

SECTION

PAGE

STATEMENT OF THE CASE

ARGUMENT

1. Rhines’ Request For A Stay Is Inequitable And Dilatory In

The Extreme

2. Adequate Relief Could Have Been Obtained In The State And

Federal Courts If Rhines Had Timely Sought It

3. Hyperbole Aside, Rhines’ Case Does Not Present Exceptional Circumstances

Warranting Extraordinary Relief

CONCLUSION

APPENDIX

Pertinent South Dakota Statutes

Appendix 001

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

Appendix 009

Ballard Attorney Referral Article

Appendix 066

Habeas Corpus Transcript Excerpt

Appendix 068

Criminal Trial Transcript Excerpt

Appendix 074

Rhines “Reply To Last Word” Filing

Appendix 083

Rhines Pro Se Complaint

Appendix 091

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

Appendix 112

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

Appendix 131

Cersosimo Journal

Appendix 155

Voir Dire Transcripts

Appendix 236

Juror Quote

Appendix 478

TABLE OF AUTHORITIES

CASES CITED

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

PAGE

8, 14, 15

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

5, 8

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

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

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

Cullen v. Pinholster, 131 S.Ct. 1388 (2011)

9, 11, 30

3, 6, 13, 33

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

Ex parte Abernathy, 320 U.S. 219 (1943)

Felker v. Turpin, 518 U.S. 651, 662 (1996)

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

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

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

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

5, 6

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

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

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

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

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

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

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

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

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

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

(11th Cir. 2004)

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

21, 22

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

(1984)

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

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

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

3, passim

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

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

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

2, 7, 14, 21, 31

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

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

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

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

22, 23, 27

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

(6th Cir. 2006)

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

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

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

20, 21, 22

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

1, 2, 16

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

22, 23, 27

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

11, 20

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

20, 29

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

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

21, 22

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

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

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

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

STATUTES CITED

28 U.S.C. § 2244

2, 14, 15, 22

28 U.S.C. § 2254

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

SDCL 15-6-59(e)

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

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

2, 3, 7, 8

3, 4, 5, 6, 8, 18

19, 20, 21, 24, 25, 27, 29

SDCL 21-27-3.3

14, 16

SDCL 21-27-5.1

14, 21, 22

SDCL 23A-27-4.1

SDCL 23A-29-1

OTHER CITED AUTHORITIES

MEANS, Federal Habeas Manual: A Guide to Federal Habeas

Corpus Litigation, § 7:39 (2017)

22, 23

APPENDIX

Volume 1

Pertinent South Dakota Statutes

Appendix 001

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

Appendix 009

Ballard Attorney Referral Article

Appendix 066

Habeas Corpus Transcript Excerpt

Appendix 068

Criminal Trial Transcript Excerpt

Appendix 074

Rhines “Reply To Last Word” Filing

Appendix 083

Rhines Pro Se Complaint

Appendix 091

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

Appendix 112

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

Appendix 131

Cersosimo Journal

Appendix 155

Volume 2

Voir Dire Transcripts

Appendix 236

McGriff

Appendix 237

Blake

Appendix 262

D. Anderson

Appendix 278

Keeney

Appendix 303

Cersosimo

Appendix 321

Corrin

Appendix 338

Walton

Appendix 353

M. Anderson

Appendix 374

Woodson

Appendix 393

Dean

Appendix 409

Brown

Appendix 432

Shafer/Rohde

Appendix 458

Juror Quote

Appendix 478

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STATEMENT OF THE CASE

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

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

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

where he worked after hours to retrieve supplies and caught Rhines

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Following lengthy federal post-conviction proceedings not relevant

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

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

Rhines then obtained federal habeas corpus review of the claims

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

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

February of 2016. In March of 2016, Rhines filed a Fed.R.Civ.P. 59(e) motion

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

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

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

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

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

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

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

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

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

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

Respondent’s Appendix at 120.

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

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

Rhines was appointed new lawyers from the “Pennsylvania Federal

Community Defender Office” (PFCDO). In September of 2018, the PFCDO

sought to revive the jury bias issues raised and lost in Rhines’ Rule 59(e)

motion by filing a Fed.R.Civ.P. 15(a)(2)/60(b)(6) motion to vacate the

judgment denying his petition so that Rhines could amend his petition to add

a new claim of jury bias. Rhines claimed to have “newly discovered” evidence

of jury bias based on PFCDO interviews of jurors conducted in December of

2016. These “new” affidavits simply rehashed allegations of jury bias raised

by Rhines’ previous counsels’ interviews of jurors in September 2015. Rhines’

motion argued that the racial exception to the no-impeachment rule recently

announced in Pena-Rodriguez v. Colorado, 137 S.Ct. 855 (2017), applied to

sexual orientation bias.

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

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

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

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

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

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

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

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

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

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

TO AMEND, Docket 399, Rhines Appendix at 320.

Rhines requested a certificate from both the district and circuit courts

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

denied the request. Rhines then petitioned this Court for a writ of certiorari

to appeal the finding that his Rule 60(b) motion was a successive petition.

This Court denied the writ on April 15, 2019.

Rhines now seeks the extraordinary remedy of an original writ and

transfer to the district court. The request for writ and stay of execution

should be denied.

ARGUMENT

This court should deny Rhines’ petition because (1) Rhines’ request for a

stay is inequitable and dilatory in the extreme, (2) this case does not present

exceptional factual and legal issues and (3) adequate relief could have been

obtained in the state and federal courts if Rhines had timely sought it. Rhines’

petition fails to meet the criteria of an extraordinary petition, a successive

petition or even a straight-up Pena-Rodriguez claim. Rhines’ claim is supported

by dubious evidence that has never been subject to judicial review. Due to these

incurable procedural and substantive defects, remand to the district court would

be futile.

4. Rhines’ Request For A Stay Is Inequitable And Dilatory In The Extreme

Recently, in Bucklew v. Precythe, 139 S.Ct. 1112, 1134 (2019), this Court

condemned the practice of reflexively entering stays of execution. Stays of

execution “should be the extreme exception, not the norm.” Bucklew, 139 S.Ct.

at 1134. Per Bucklew, no stay should be entered for lawsuits that attack settled

precedent, which rest on speculative theories, which lack sufficient substance to

survive summary judgment and which could have been brought sooner.

Bucklew, 139 S.Ct. at 1134.

Bucklew reaffirmed the longstanding principle that the mere fact that an

inmate has filed a 42 U.S.C. § 1983 claim – even a potentially meritorious one –

“does not warrant the entry of a stay as a matter of right.” Nelson v. Campbell,

541 U.S. 637, 649 (2004); McFarland v. Scott, 512 U.S. 849, 858 (filing for postconviction relief “by no means grants capital defendants a right to an automatic

stay of execution”). “[I]f a dilatory capital defendant inexcusably ignores [the]

opportunity [to bring a claim earlier] and flouts the available processes, a . . .

court presumably would not abuse its discretion in denying a stay of execution.”

McFarland, 512 U.S. at 858. Per Bucklew, Nelson and McFarland, no stay is

warranted in this matter:

a. Rhines’ appeal attacks settled precedent of this Court in Gonzalez v.

Crosby, 545 U.S. 524, 529, 530 (2005), which ruled that a Rule 60(b)

motion “is in substance a successive habeas petition and should be treated

accordingly” if it “seeks to add a new ground for relief” that “assert[s a]

federal basis for relief from a state court’s judgment of conviction.” The

district court found that Rhines’ “new [jury bias] claim meets the very

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

DENYING MOTION TO AMEND, Docket 399, Rhines Appendix at 320.

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

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

motion is a successive petition and he did not seek or obtain the Eighth

Circuit’s authorization to file it, [the district court did] not have

jurisdiction to entertain it on the merits.” SECOND ORDER DENYING

MOTION TO AMEND, Docket 399, Rhines Appendix at 320.

b. Rhines also attacks the settled precedent of Cullen v. Pinholster, 131 S.Ct.

1388 (2011), which precludes federal habeas corpus courts from hearing

evidence not contained in the state court record.

c. Rhines’ appeal rests on sheer speculation and inference. It would not

satisfy Pena-Rodriguez’s requirement of “clear and explicit statements

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

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

d. Rhines’ unexhausted claim of homophobic jury bias was twice not

sufficient to withstand summary disposition in the district court, twice

failed to qualify for a certificate of probable cause in either the district or

circuit court, and twice failed to secure a petition for a writ of certiorari

from this court.

e. Rhines was dilatory in presenting his alleged homophobic jury bias claim

to the district court below and to this Court. Rhines was dilatory in the

district court because he could have appealed the district court’s denial of

his first Rule 59(e) motion when he appealed the district court’s denial of

his petition for habeas corpus in 2016. Rhines v. Young, 5:00-CV-05020KES (D.Ct.S.D.)(Docket 334, 357). He did not. Instead, Rhines filed a

second motion while the appeal was pending and then took a separate

appeal from the district court’s denial of his second motion in 2018.

Rhines has been dilatory in presenting the issue to this Court, because

this Court denied his petition for a writ of certiorari seeking to appeal the

circuit court’s rejection of his homophobic jury bias claim on April 15,

2019, yet Rhines waited until three days before his execution to invoke the

court’s original habeas corpus jurisdiction. Rhines’ failure to timely

appeal the 2016 denial of his first motion, and to invoke this Court’s

original habeas corpus jurisdiction sooner, demonstrates how this petition

is a calculated “tool to interpose unjustified delay.” Bucklew, 139 S.Ct. at

1134.

5. Adequate Relief Could Have Been Obtained In The State And Federal Courts

If Rhines Had Timely Sought It

Rhines raised this identical jury bias/Pena-Rodriguez claim in two prior

petitions for a writ of certiorari to this Court. Rhines v. South Dakota, No. 178791; Rhines v. South Dakota, No. 18-8029. This court denied both petitions.

This court can deny Rhines’ current petition as well because Rhines failed to

exhaust available state and federal remedies for his allegations of homophobic

jury bias.

Because Rhines failed to exhaust available state remedies, his jury bias

claim does not meet criteria for the filing of a successive petition. Even if it did,

and Rhines were given leave to file a successive petition, it would be subject to

immediate dismissal because the claim is unexhausted, procedurally defaulted

and barred by both state and federal statutes of limitations. And even if Rhines’

jury bias claims were not barred six ways to Sunday, his proffered jury bias

evidence does not satisfy the criteria of the Pena-Rodriguez exception. Thus, any

ruling that Rhines’ Rule 60(b) motion was not a successive petition, or extending

Pena-Rodriguez to sexual orientation, would be futile. Amodeo v. United States,

743 Fed.Appx. 381, 385-86 (11th Cir. 2018)(ruling finding motion not a successive

petition would have been futile because time for amending petition had passed).

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

And Vigorously Disputed

Rhines’ jury bias affidavits are inherently unreliable because they were

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

not real federal attorneys employed by the federal government and accountable

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

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

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

Courts to serve as appointed counsel to indigent federal defendants through

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

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

constraints that generally preclude private law firms from pursuing fabricated

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

the hours the PFCDO bills.

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

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

that generally restrains real federal public defenders from making frivolous

claims or economic constraints that inhibit regular private practice attorneys

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

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

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

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

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

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

informed that the PFCDO had information that a pejorative term about

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

the PFCDO had inside information about the deliberations unknown to the

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

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

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

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

deliberations. GARLAND AFFIDAVIT at ¶¶ 35, 37, 47, Rhines Appendix at 314,

315.

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

Investigation (DCI) stated consistently and unequivocally that Rhines’

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

sentence. GARLAND AFFIDAVIT, Rhines Appendix at 310; GARLAND

SUPPLEMENTAL AFFIDAVIT, Rhines Appendix at 317. Juror Cersosimo

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

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

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

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

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

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

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

¶ 24, Rhines Appendix at 313. The jurors uniformly report not only that the

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

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

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

Rhines Appendix at 310, 313, 314, 315.

The PFCDO’s assaultive tactics and scurrilous insinuations are no

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

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

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

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

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

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

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

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

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

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

incompetence or laziness, their argument unencumbered by concerns for

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

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

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

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

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

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

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

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

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

009, 056.

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

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

significant discrepancy between what the jurors allegedly said to PFCDO

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

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

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

AFFIDAVIT at ¶ 12, Rhines Appendix at 317. In Tharpe, defense investigators

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

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

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

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

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

SUPPLEMENTAL GARLAND AFFIDAVIT at ¶ 9, Rhines Appendix at 317. In

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

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

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

BLAKE “AFFIDAVIT,” Rhines Appendix at 98.

In briefing to this Court in 18-8029, the PFCDO mendaciously asserted

that the jurors have not “retracted” the statements attributed to them by the

PFCDO, a self-serving choice of verb that assumes the jurors made the alleged

statements in the first place, or made them with the meaning the PFCDO draws

from them. Blake has said that the PFCDO’s assertions are “Not true.”

SUPPLEMENTAL GARLAND AFFIDAVIT at ¶ 6, Rhines Appendix at 317.

There is nothing for Cersosimo to “retract.” When asked if he voted for a death

sentence because Rhines is gay, Keeney adamantly said “No, no, no. No I didn’t

do that.” SUPPLEMENTAL GARLAND AFFIDAVIT at ¶ 15, Rhines Appendix

at 317. Keeney’s statement certainly repudiates the homophobic inference that

the PFCDO draws from the prepositional phrase (inserted by the PFCDO itself )

“with men” within Keeney’s otherwise generic statement that he believed that

Rhines should not have been allowed to spend his life in prison. The PFCDO

shamelessly exploited Keeney’s condition by phrasing his affidavit to give it

import and meaning that was not intended or understood by Keeney.

Accordingly, the veracity of any affidavits procured unilaterally by the

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

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

b. Rehearing By The District Court Would Be Futile Because Rhines

Has Exhausted His State And Federal Appellate And Habeas

Corpus Remedies Without Ever Raising A Jury Homophobia Claim

Rehearing by the district court would be futile because Rhines exhausted

his state appellate and habeas corpus processes without ever introducing any of

his current “evidence” of jury bias. His current evidence runs squarely up

against Pinholster’s ban on extra-record evidence in federal habeas corpus

proceedings and the AEDPA’s prohibition on federal review of procedurally

defaulted, unexhausted claims. Pinholster, 131 S.Ct. at 1388; 28 U.S.C.

2254(b)(1); Ex parte Abernathy, 320 U.S. 219 (1943)(extraordinary writ not

granted “where petitioner has not exhausted his remedies in the state courts”);

Felker v. Turpin, 518 U.S. 651, 662 (1996)(AEDPA limitations “inform” the

Court’s consideration of petitions for original writs of habeas corpus); S.Ct.Rule

20.4(a)(petitioner must demonstrate “how and where the petitioner has

exhausted available remedies in the state courts”).

Rhines cannot develop and is presently barred from bringing a successive

habeas corpus petition under state law because:

•

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

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

•

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

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

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

Any transfer to the district court on an original writ would be futile because

the claim is unsupported by record evidence, incurably unexhausted,

procedurally defaulted and time barred in state and federal court. Amodeo,

743 Fed.Appx. at 385-86 (ruling finding motion not a successive petition

would have been futile because time for amending petition had passed).

i. Rhines’ Jury Bias Claim Is Time Barred

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

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

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

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

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

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

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

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

be made within one year).

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

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

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

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

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

society’s ostracization of homosexuals. HABEAS CORPUS TRANSCRIPT at

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

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

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

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

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

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

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

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

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

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

at 236.

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

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

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

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

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

“reflected homophobic sentiments that improperly affected jury deliberations.”

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

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

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

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

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

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

N.W. 2d 303.

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

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

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

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

repeatedly attempted to urge his appointed counsels to interview

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

they sent to the trial court judge during penalty phase

deliberations. These questions ranged from the plaintiff’s future

dangerousness if he were ever placed in a minimum security

prison or be allowed work release to what conditions of

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

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

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

with other inmates. During voir dire the jurors were informed

that the plaintiff is a homosexual and each potential juror

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

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

phase deliberations seems to counterindicate those statements by

these jurors and, subsequently the plaintiff urged each of his

appointed counsels to interview these jurors about what they had

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

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

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

was appointed by the Honorable Karen E. Schreier as Learned

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

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

Poirer began interviewing former jurors and discovered that

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

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

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

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

added).

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

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

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

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

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

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

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

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

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

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

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

petition would be futile because it is incurably unexhausted, procedurally

defaulted and time-barred.

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

And New, Retroactive Constitutional Rule Criteria For A

Successive Petition

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

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

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

criterion for a successive petition.

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

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

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

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

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

that this evidence could not have been discovered earlier despite having

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

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

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

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

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

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

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

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

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

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

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

To the extent Rhines argues that Rule 606 was an insurmountable

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

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

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

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

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

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

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

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

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

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

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

opportunity to prove actual bias.” According to Smith:

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

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

impossible to shield jurors from every contact or influence that might

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

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

judge ever watchful to prevent prejudicial occurrences and to determine

the effect of such occurrences when they happen.

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

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

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

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

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

criminal judgment by filing:

•

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

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

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

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

556 (1984); or

•

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

of the judgment.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

advisory.

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

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

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

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

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

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

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

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

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

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

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

“extreme . . . passion or prejudice”).

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

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

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

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

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

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

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

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

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

28 U.S.C.A. § 2244(b).

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

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

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

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

would be merely advisory.

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

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

(2016):

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

constitutional law. Substantive rules include “rules forbidding

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

prohibiting a certain category of punishment for a class of defendants

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

retroactive effect to new “watershed rules of criminal procedure”

implicating the fundamental fairness and accuracy of the criminal

proceedings.

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

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

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

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

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

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

previously unrecognized bedrock procedural element that is essential to the

fairness of a proceeding”).

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

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

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

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

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

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

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

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

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

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

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

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

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

language and reasoning of the Pena-Rodriguez decision itself:

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

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

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

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

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

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

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

“watershed” rule in child sexual assault case).

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

During deliberations a juror stated that he believed the defendant was

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

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

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

being physically controlling of and aggressive toward women and young

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

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

supervision, Pena-Rodriguez obtained affidavits from other jurors

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

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

“generic questions about juror impartiality” without asking any specific

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

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

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

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

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

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

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

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

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

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

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

and institutional concerns.”

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

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

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

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

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

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

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

application here:

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

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

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

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

perpetrated for the enslavement, eradication or extreme persecution of

homosexuals. Homosexuals have not served as scapegoats for pressing

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

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

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

and institutional concerns’ attending that history, evince its constrained

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

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

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

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

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

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

occurred largely peaceably and with comparatively greatly less conflict.

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

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

that sexual orientation is not afforded the heightened protections

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

employment discrimination based on sexual orientation is not actionable

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

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

classifications based on sexual orientation are not subject to strict

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

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

orientation).5

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

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

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

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

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

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

Title VII”).

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

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

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

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

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

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

improper bias in jury deliberations. The decision was expressly cognizant

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

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

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

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

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

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

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

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

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

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

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

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

U.S. at 243.

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

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

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

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

context the Seventh Circuit has subjected homosexual discrimination to

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

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

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

(Thomas dissenting).

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

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

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

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

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

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

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

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

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

the reasoning of an opinion).

6. Hyperbole Aside, Rhines’ Case Does Not Present Exceptional Circumstances

Warranting Extraordinary Relief

Even if Rhines’ motion to amend were not a successive petition and PenaRodriguez did apply to claims of alleged homosexual bias, Rhines’ proffered

evidence does not demonstrate exceptional circumstance warranting the

extraordinary relief of an original writ:

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

questions about impartiality to include specific questions regarding any

potential juror’s homosexual bias. VOIR DIRE TRANSCRIPTS,

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

responded that they would not hold Rhines’ homosexuality against him

significantly decreases the potential that it was a significant motivating

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

Appendix at 236.

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

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

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

juror comments here are not clear and explicit expressions of animus

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

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

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

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

racial bias” will justify exception to Rule 606).

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

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

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

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

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

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

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

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

homosexual mitigation narrative if they were concerned that he might marry

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

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

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

male sexual companions.

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

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

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

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

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

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

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

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

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

GARLAND AFFIDAVIT at ¶ 13, Rhines Appendix at 317. There are

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

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

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

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

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

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

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

lace the affidavits with loaded words they could later spin with

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

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

that Cersosimo characterized the comment about Rhines being with men

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

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

that when Cersosimo was interviewed by the PFCDO’s predecessor

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

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

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

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

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

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

Appendix at 97. The Blake “affidavit” is not even signed by Blake. The

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

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

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

but clear and explicit expressions of animus against homosexuals.

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

memory impairments and dementia. SUPPLEMENTAL GARLAND

AFFIDAVIT at ¶ 9, Rhines Appendix at 317. Both Keeney and Blake deny

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

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

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

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

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

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

PFCDO making the suggestion). VOIR DIRE TRANSCRIPTS,

Respondent’s Appendix at 264; SUPPLEMENTAL GARLAND

AFFIDAVIT at ¶ 6, Rhines Appendix at 317. Affidavits procured

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

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

explicit expressions of homosexual bias.

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

any evidence that the alleged statements were “a significant motivating

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

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

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

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

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

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

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

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

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

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

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

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

which is lacking.

CONCLUSION

Rhines’ petition does not satisfy the criteria for the extraordinary remedy

of an original writ. He had available state and federal court remedies he failed

to timely exhaust, and he greatly exaggerates the alleged evidence of

homosexual bias. The PFCDO is petitioning for futile relief. Even if the case

were transferred to the district court, it could not provide relief without

suspending Pinholster’s ban on extra-record evidence and AEDPA prohibitions

on review of unexhausted, procedurally-defaulted state claims and successive

petitions and principles of comity.

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

homophobic bias a “bunch of nonsense.” SUPPLEMENTAL GARLAND

AFFIDAVIT at ¶ 10, Rhines Appendix at 317. Juror Cersosimo’s journal

describes the work of a conscientious jury appreciative of the gravity of their

decision. CERSOSIMO JOURNAL at 000030, 000044, 000052, Respondent’s

Appendix at 155. She describes a jury sophisticated enough to agree that the

emotions of Donnivan Schaeffer’s or Rhines’ family for death or life would not

drive the sentencing determination. CERSOSIMO JOURNAL at 000067,

Respondent’s Appendix at 155. She describes a jury whose sentencing

determination was instead driven by a concern to deliver “justice for Donnivan”

and the need “to remember all the rights and dreams he had that Rhines so

selfishly took from him.” CERSOSIMO JOURNAL at 000067, Respondent’s

Appendix at 155. She describes a jury sophisticated enough to agree that none

of them would speak to the press because “a few words could not begin to

describe the magnitude of [their] experience” as jurors. CERSOSIMO

JOURNAL at 000069, Respondent’s Appendix at 155. She describes a jury

animated by the principle that “No one

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

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

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

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

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

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

CERSOSIMO AFFIDAVIT, Rhines Appendix at 97; GARLAND AFFIDAVIT at ¶

48, Rhines Appendix at 310 (Juror Rohde describing how Rhines laughed

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

like he thought it would).

Despite these disturbing aggravators, the jurors “tried to find every

reason not to give him death.” JUROR QUOTE, Respondent’s Appendix at 478.

Juror Cersosimo describes a jury focused on all the right and humane concerns

of a jury charged with such a consequential decision. Since Cersosimo was so

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

expect her journal to faithfully document any overt homophobia or homophobic

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

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

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

contemporaneous proof, unadulterated by PFCDO scheming, that the jury

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

Rhines has now eluded justice for longer than he allowed Donnivan

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

Rhines’ deserved death sentence. Rhines’ petition for an original writ of habeas

corpus should be summarily and unceremoniously DENIED.

Dated this 2nd day of November 2019.

Respectfully submitted,

JASON R. RAVNSBORG

ATTORNEY GENERAL

Paul_S._Swedlund____________

Paul S. Swedlund

Assistant Attorney General

1302 East Highway 14, Suite 1

Pierre, South Dakota 57501-8501

Telephone: 605-773-3215

Facsimile: 605-773-4106

paul.swedlund@state.sd.us

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on this 2nd day of November 2019 a

copy of the foregoing response to petition for original writ of habeas corpus was

served on Claudia Van Wyk, 601 Walnut Street, Suite 545 West, Philadelphia, PA

19106 and Jason J. Tupman, Acting Federal Public Defender, 200 West 10th Street,

Suite 200, Sioux Falls, SD 57104 via e-mail to claudia_vanwyk@fd.org and

jason_tupman@fd.org respectively and U.S. Mail first class prepaid.

Paul_S._Swedlund____________

Paul S. Swedlund

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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.