Petition for Writ of Certiorari — Daniel Ray Mann, Petitioner v. Doug Clark, Warden, et al.

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)

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

4:21-CV-04158-RAL

DANIEL RAY MANN,

Plaintiff,

vs.

DOUG CLARK, WARDEN, SDSP; AND

ATTORNEY GENERAL OF SOUTH

DAKOTA,

OPINION AND ORDER DENYING

PETITIONER’S WRIT OF HABEAS

CORPUS AND GRANTING

DEFENDANTS’ MOTION TO DISMISS

Defendants.

Petitioner Daniel Mann was convicted of one count of first-degree rape in violation of

SDCL § 22-22-1(1). He filed a petition of habeas corpus under 28 U.S.C. § 2254 contending that

he was denied a fair trial by testimony from a police officer that vouched for the child victim,

questions asked and statements made by the prosecution that improperly shifted the burden of

proof, arid ineffective assistance of counsel in violation of the Sixth Amendment right to counsel.

For the reasons set forth below, Mann’s § 2254 petition is denied and Defendants motion to

dismiss is granted.

I. Background

In September 2016, Mann was charged with four counts of first-degree rape in violation of

SDCL § 22-22-1(1). Criminal Trial Record (“CTR”) 1. He was accused of sexually assaulting a

minor child, J.G., his wife Nikki Mann’s niece.

1

Habeas Appeal Record (“HAR”) 6. J.G. had

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come into the couple’s care along with one of her brothers1 after they were removed2 from their

biological parents due to severe neglect. HAR 6. Eventually, because of Nikki’s declining mental

health, the children were again removed to another relative’s care in North Dakota. HAR 8. There,

J.G. told a therapist that she had been sexually abused by Mann while under his care. HAR 8.

J.G.’s therapist reported this disclosure to law enforcement triggering an investigation that led to

Mann’s indictment. HAR 11.

A jury trial was conducted in August 2017, and Maim was convicted of one count of firstdegree rape but found not guilty on the other three counts. CTR 541. Mann received a thirty-fiveyear prison sentence with ten years suspended, and the court imposed various costs. CTR 54142.

On direct appeal, Mann raised three issues:

(1) Whether the introduction of testimony that the alleged victim was. telling the

truth improperly vouched for the credibility of the child witness;

(2) Whether improper statements by the prosecution prejudiced him;

(3) Whether he was denied his Sixth Amendment right to effective assistance of

counsel.

Doc. 27 at 3. The Supreme Court of South Dakota affirmed Mann’s conviction, but noted its order

expressed “no opinion on the issue of whether Mann was denied his Sixth Amendment right to

effective assistance of counsel.” CTR 1336; HAR 142.

In December 2019, Mann filed a state habeas corpus action contending that his Sixth

Amendment right to effective assistance of counsel was violated during his criminal jury trial.

Doc. 27 at 4; HAR 1-3. Mann contended his trial counsel was ineffective in three ways:

l

J.G. also has a twin sister. HAR 6,264.

2 The children were initially placed with their grandparents after being removed from their

biological parents but were placed with the Manns after the grandparents’ health declined. HAR

38.

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(1) Failure to obj ect to leading questions during the prosecutor’s direct examination

of the child witness and victim, J.G.

(2) Failure to object to Lt. Derrick Power’s testimony bolstering the credibility of

J.G.

(3) Failure to object to the prosecutor’s improper statements on the burden of proof

during the closing argument.

Doc. 27 at 4. A state judge denied Mann’s habeas petition in July 2020. HAR 162. Mann then

obtained a certificate of probable cause and appealed denial of his ineffective assistance claims to

the Supreme Court of South Dakota which affirmed the lower court ruling in March of2021. HAR

199,202,297,299. .

Mann filed a federal pro se § 2254 petition with this Court in September 2021,

which he subsequently amended. Docs. 1,25,27,28. In his amended petition, Mann raised

the following grounds as basis for relief:

(1) Whether the introduction of testimony that the alleged victim was telling the

truth improperly vouched for the credibility of the child witness;

(2) Whether improper statements by the prosecutor prejudiced him;

(3) Whether he was denied his Sixth Amendment right to effective assistance of

counsel

(4) Failure to object to leading question during direct examination of the alleged

victim;

(5) Failure to object to Lt. Powers’ testimony bolstering the credibility of J.G.

(6) Ineffective assistance, prosecutorial misconduct, vouching, burden shifting;

(7) Whether he was denied his Sixth Amendment right to effective assistance of

counsel.

Docs. 27,28. Mann petitioned the Court to “reverse conviction, and/or remand for re-trial, and/or

remand for further review.” Doc. 27 at 16. The state defendants moved to dismiss, Doc. 11-2, to

which Mann responded, Docs. 23, 24. The government then replied. Doc. 26. This Court now

denies Mann’s amended petition for writ of habeas corpus and grants the state defendant’s motion

to dismiss for the reasons outlined below.

II. Discussion

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As amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

28 U.S.C. § 2254 sets limitations “on the power of a federal court to grant an application for a writ

of habeas corpus on behalf of a state prisoner.” Cullen v. Pinholster: 563 U.S. 170, 181 (2011).

“Section 2254(a) permits a federal court to entertain only those applications alleging that a person

is in state custody ‘in violation ofthe Constitution or laws or treaties of the United States.’ Sections

2254(b) and (c) provide that a federal court may not grant such applications unless, with certain

exceptions, the applicant has exhausted state remedies.” IcL (quoting § 2254).

“If an application includes a claim that has been ‘adjudicated on the merits in State court

proceedings,’” additional restrictions apply. Id. (quoting § 2254(d)). Section 2254(d) provides

that an application shall not be granted unless adjudication of such a claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable

t application of, clearly established Federal law, as determined by the Supreme Court

of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.

28.U.S.C. § 2254(d). The Supreme Court of the United States has. described the § 2254(d) standard

as “highly deferential standard,” “difficult to meet” and demanding “that state-court decisions be

given the benefit of the doubt.” Cullen. 563 U.S. at 181 (cleaned up and citations omitted). “A

state court’s determination that a claim lacks merit precludes federal habeas relief so long as

‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v.

Richter. 562 U.S. 86, 101 (2011). The petitioner bears the burden of proof. Cullen. 563 U.S. at

181.. However, because § 2254(d)’s demanding standard of review only applies if the claim was

adjudicated on the merits, when the state court did not resolve the claim on the. merits, federal

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courts review the petitioner’s claim de novo. See Worthington v. Roper. 631 F.3d 487, 495 (8th

Cir. 2011). This Court will now analyze each ground Mann raises under § 2254.3

A. Grounds I and V - Whether the introduction of testimony that the alleged victim

was telling the truth improperly vouched for the credibility of the child witness

On direct appeal, Mann argued that Lt. Powers improperly vouched for the credibility of

another witness, the alleged victim J.G. South Dakota Supreme Court Direct Appeal Record

(“DAR”) Doc. 12. The Supreme Court of South Dakota held that Mann’s appeal was “without

merit.” CTR 1336. Mann reiterated this vouching argument in his habeas action contending the

failure to object to Powers’s vouching for the child witness was ineffective assistance of counsel.

HAR43.

To properly exhaust his standalone vouching claim, Mann needed to “fairly present” his

federal claims in state court. Tumage v. Fabian. 606 F.3d 933, 936 (8th Cir. 2010). Tty fairly

present his vouching claim, Mann “must have referred to a specific federal constitutional right, a

particular constitutional provision, a federal constitutional case, or a state case raising a pertinent

federal constitutional issue in a claim before the state courts.” Id.

“A claim is considered

exhausted when the petitioner has afforded the highest state court a fair opportunity to rule on the

factual and theoretical substance of his claim.” Ashker v. Leapley. 5 F.3d 1178, 1179 (8th Cir.

1993). After reviewing the record, see DAR Docs. 12, 15, Mann has not “fairly presented” his

standalone vouching claim to the state court, and therefore, has not satisfied the exhaustion

requirement for his claim to be considered by this Court under § 2254.4

3 Several of Mann’s grounds for relief are repetitive. This Court will group them where

appropriate.

4 Mann repeats the argument regarding Powers’s vouching for the alleged victim in his habeas

appeal, but couches the argument as an ineffective assistance claim which this Court will address

under that section. HAR 12-15.

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Mann’s brief on direct appeal presented this issue as a challenge under SDCL § 19-19-702

and its federal corollary Rule 702 of the Federal Rules of Evidence. But a violation of a state law

rule of evidence is “not cognizable in a federal habeas action because it only concerns an alleged

error in the interpretation or application of state law.” Hurtado v. Long. No. CV 14-8068 MWF

(KS), 2017 WL 11647753, at *16 (C.D. Cal. Jan. 26,20171; see also Estelle v. McGuire. 502 LIS.

62, 67 (1991) (“federal habeas corpus relief does not lie for errors of state law” (cleaned up and

citation omitted)). Moreover, the “Federal Rules of Evidence are not ‘laws’ or ‘rights’ that apply

in state court criminal proceedings, and those rules are not binding on a state court, and to the

extent that a state court may have ‘violated’ a Federal Rule of Evidence during a state court

criminal trial, such a violation is not a constitutional or federal-law violation that a federal habeas

corpus action is empowered to remedy.” Hurtado. 2017 WL 11647753, at *16; see also Ward v.

Beard. No. CV 11-8025 GAF SS, 2013 WL 5913816, at *13 n.17 (C.D. Cal. Oct. 30, 2013)

(rejecting a claim that federal habeas relief was warranted for a state court violation of the Federal

Rules of Evidence).

In addition to citing to several South Dakota Supreme Court cases that mostly discuss the

application of state law, see DAR Doc. 12; State v. Buchholtz. 841 N.W.2d 449, 454 (S.D. 2013);

State, v. Chamlev. 568 N.W.2d 607, 615 (S.D. 1997); State y, Floodv. 481 N.W.2d 242,249 (S.D.

1992), Mann—when arguing his improper bolstering claims in state court—relied on state cases

including from Nebraska, State v. Welch. 490 N.W. 2d 216 (Neb. 1992); Oregon, State v. Keller.

844 P.2d 195,202 (Or. 1993); Ohio, State v. Bos.. 545 N.E.2d 1220, 1231 (Ohio 1989); Indiana,

Hoelund v. State. 962 N.E.2d 1230 (Ind. 2012); and an appellate case from Illinois, People v.

Boling. 8 N.E.3d 65, 89 (Ill. App. Ct. 2014). But these cases discuss either state law or the federal

6

IS

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rules of evidence on the impropriety of vouching for a witness, not a constitutional right or

established federal law.

Mann did cite to the Supreme Court of South Dakota a case from the United States Court

of Appeals of the Ninth Circuit, United States v. Necoechea. 986 F.2d 1273, 1282-83 (9th Cir.

!

1993). However, that case does not discuss vouching as a constitutional violation and ultimately

concluded that the two instances of vouching did not amount to plain error and affirmed the

conviction. Id at 1280, 1283. Jurisdictions have analyzed the issue differently depending on the

context of the cases. See Adesiii v. Minnesota. 854 F.2d 299, 300-01 (8th Cir. 1988) (finding an

improper vouching argument to be matter of state law not implicating the constitution);

McCandless v. Vaughn, 172 F.3d 255, 262-63 (3d Cir. 1999) (holding that a petitioner failed to

exhaust his vouching claim when he presented it to the state courts “as an evidentiary law challenge

and not as a violation of a federal or constitutional right”-); cf Hoglund v. Neal. 959F.3d 819, 83738 (7th Cir. 2020) (finding that the petitioner fairly presented his vouching claim).

Here, Mann did not fairly present the vouching claim in state court in a manner that

sufficiently called out “to a specific federal constitutional right, a particular constitutional

provision, a federal constitutional case, or a state case raising a pertinent federal constitutional

issue in a claim before the state courts” and thus has not properly exhausted his claim in state court.

See Tumage. 606. F.3d at 936. “It is not enough to recite only the facts necessary to state a claim

for relief... or to make a general appeal to a constitutional guarantee as broad as due process.”

Id. (cleaned up and citations omitted). “Likewise, mere similarity between state law claims and

federal habeas claims is insufficient to satisfy the fair presentation requirement.” Id (cleaned up

and citation omitted).

“The petitioner must simply make apparent to the state court the

constitutional substance of the constitutional claim.” Abdulrazzak v. Fluke. No. 4:19-CV-04025-

^A-ppe/i9 > £

7

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RAL, 2019 WL 5964974, at *5 (D.S.D. Nov. 13, 2019). Based on a review of the record, Mann

has failed to make apparent to the state court the constitutional substance of his federal claim.

This Court next considers whether Mann has procedurally defaulted on his claim. “If a

prisoner fails to present his federal claims to the state courts, those claims are generally considered

procedurally defaulted.” Tumage. 606 F.3d at 936. “For a habeas petitioner to default a claim

procedurally, he must have violated a state procedural rule, and the last state court rendering a

judgment in the case must have based its judgment on the procedural default.” Schauer v. McKee.

401 F. App’x 97,101 (6th Cir. 2010) (cleaned up and citation omitted). Here, Mann procedurally

defaulted by failing to object to Powers’s alleged improper vouching at trial. See Nerison v.

Solem. 715 F.2d 415, 418 (8th Cir. 1983) (“Failure to raise a timely objection is a procedural bar

to habeas corpus review.”). And while the opinion and order issued by the Supreme Court of

South Dakota offers little guidance regarding how it interpreted the vouching argument, the parties

seemed to present the argument to the state Supreme Court as being under the “plain error”

standard with the court stating it found no abuse of discretion5—meaning the state Supreme Court

likely based its pro forma rejection of Mann’s arguments on the failure to object at trial.6

Therefore, Mann’s standalone vouching argument is procedurally defaulted, and since a “state

prisoner who procedurally defaults a claim waives the right to federal habeas review of that claim

unless the prisoner can demonstrate cause for noncompliance and actual prejudice arising from the

alleged constitutional violation, or a showing of a fundamental miscarriage of justice,” this Court

5 The order affirming conviction states “1. the issues on appeal are clearly controlled by settled

South Dakota or federal law binding upon the states, and 2. that the issues on appeal are ones of

judicial discretion and there clearly was not an abuse of discretion.” See CTR 1336.

6 Mann’s brief to the Supreme Court of South Dakota on direct appeal admits no objection was

made at trial to the vouching statements and requested review under a plain error standard. DAR

Doc. 12 at 17.

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cannot consider Mann’s improper vouching argument under § 2254. Schaorr, 401 F. App’x 97 at

101-02 (cleaned up and citation omitted); see also Welch v. Lund. 616 F.3d 756, 758 (8th Cir.

2010) (“A failure to exhaust remedies properly in accordance with state procedure results in

procedural default of the prisoner’s claims.”).

B. Grounds II and VI - Whether statements by the prosecutor improperly shifted

the burden of proof onto the Defendant

Maun has met the exhaustion requirement7 regarding whether the prosecutor improperly

shifted the burden of proof onto him and therefore the question becomes whether under § 2254(d),

the state court affirmed his conviction despite “a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law[.]” 28U.S.C. § 2254(d). Mann argues

“[pjursuant to the Due Process Clause of the 14th Amendment to the United States Constitution,

the burden is always on the State to prove every element of a criminal offense beyond a reasonable

doubt.” DAR Doc. 12 at 18. Mann contends the prosecution’s questions regarding alternative

suspects and why he did not schedule a follow-up meeting with Lt. Powers shifted the burden of

proof onto him. Mann quotes the following exchange:

Q: And so did you believe that those two individuals had possibly raped [J.G.]?

A: The potential was there. David Hogan I know lived with [my biological mom

and dad] for a period of time. He was also their drug dealer; so I have no idea what

the man is capable of. I’m not saying he did it, I’m just saying he could have.

Q: And you felt like that’s what you articulated to Lieutenant Powers?

A: I don’t think he gave me a chance to articulate it.

Q: And so when he asked you to call him about this or asked you anything that you

needed him to know, you opted to leave and not continue the conversation?

A: I opted to ask for a lawyer three times. Actually I think it was four before he

allowed me to leave.

7 Mann specifically referenced the Fourteenth Amendment in his direct appeal while discussing

the burden shifting argument. See DAR Docs. 12 at 18, 15 at 8.

9

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DAR Doc. 12 at 19. Mann argues this exchange left the jury with the impression that he was

required to put forth evidence of his own innocence. The State responded that Mann invited the

exchange by basing his defense on the alleged inadequacy of the investigation and alleging that

J.G. may have been abused by others. Thus, the prosecutor’s questions regarding other suspects

were a means of attacking the credibility of Mann and his defense theory based on his failure to

articulate those concerns to law enforcement.

The Eighth Circuit has stated that “[t]o obtain a reversal based on prosecutorial misconduct

to which there was proper objection,8 a defendant must show that (1) the prosecutor’s remarks or

conduct were improper, and (2) the remarks or conduct affected the defendant’s substantial rights

so as to deprive him of a fair trial.” United States v. Coutentos. 651 F.3d 809, 821 (8th Cir. 2011)

(cleaned up and citation omitted).

“Typically, prosecutorial misconduct occurs when the

prosecutor herself attempts to bolster or express a personal opinion about the credibility of a

witness, implies that certain evidence is truthful, or refers to evidence that is unavailable to the

jury.” United States v. Bear Runner. No. CR12-50166-01-KES, 2013 WL 3824405, at *3 (D.S.D.

July 23, 2013). None of these examples are present here, and this Court is not convinced the

prosecution made any improper statements or asked any improper questions that shifted the burden

of proof onto Mann. Mann had posited that there were others who had possibly committed the

crime and alleged the police investigation was weak. CTR 1241, 1245. It was not unfair for the

prosecution to ask what information Mann had provided to law enforcement to test the veracity of

his claims that he was truly interested in assisting in the investigation. Therefore, under the §

2254(d) deferential standard of review, this Court cannot conclude that the Supreme Court of South

8

Because Mann failed to object to these questions during trial, the State argued the court was

confined to plain error review. DAR Doc. 14 at 18.

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Dakota’s decision affirming Mann’s conviction was “a decision that was contrary to, or involved

an unreasonable application of, clearly established Federal law[.]” 28 U.S.C. § 2254(d).

C. Grounds IH, IV, V, VI, and VII - Whether Mann was denied effective assistance

of counsel

Mann argues that he was denied effective representation in violation of his right to counsel.

See HAR 43. The Sixth Amendment to the United States Constitution guarantees the right to

effective assistance of counsel in criminal prosecutions. U.S. CONST, amend. VI; see also Gideon

v. Wainwright. 372 U.S. 335,339 (1963); Johnson v. Zerbst 304 U.S. 458, 459 (1938); Powell v.

Alabama. 287 U.S. 45, 63 (1932). To establish a claim of ineffective assistance of counsel, the

petitioner must show both that his counsel’s performance was deficient, and that the deficient

performance prejudiced his defense. Strickland v. Washington. 466 U.S. 668, 687 (1984). To

meet this two-pronged Strickland standard, the petitioner must show that “(1) his counsel’s

representation fell below an objective standard of reasonableness; and (2) there is a reasonable

probability that, but for his counsel’s unprofessional errors, the result of the proceeding would

have been different.” United States v. Ledezma-Rodriguez. 423 F.3d 830, 836 (8th Cir. 2005).

The first part of the test “requires a showing that counsel made errors so serious that counsel

was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

Williams v. United States. 452 F.3d 1009,1013 (8th Cir. 2006). The petitioner must “overcom[e]

the strong presumption that defense counsel’s representation fell ‘within the wide range of

reasonable professional assistance.’” Delgado v. United States. 162 F.3d 981,982 (8th Cir. 1998)

(quoting Strickland. 466 U.S. at 689). Courts are not to “second-guess” trial strategy. Williams.

452 F.3d at 1013. “The Sixth Amendment right to counsel functions to ensure that defendants

receive a fair trial, not a perfect one.” Willis v. United States. 87 F.3d 1004,1008 (8th Cir. 1996).

iJo* Ido

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“The second part of the Strickland test requires that the movant show that he was prejudiced

by counsel’s error[.]” Williams, 452 F.3d at 1013. This means proving that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Id. (cleaned up and citation omitted). “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. (cleaned up and citation omitted). “It is

not enough for the defendant to show that the errors had some conceivable effect on the outcome

of the proceeding.” Ford v. United States. 917 F.3d 1015, 1021 (8th Cir. 2019) (cleaned up and

citation omitted). “Because the defendant must satisfy both prongs of the Strickland test to succeed

on an ineffective-assistance claim, a court may decide such a claim by addressing either prong.”

Id.

Mann makes a number of claims regarding ineffective assistance which this Court will

address in turn, identifying those that were properly exhausted during Mann’s habeas appeal9 in

state court, but generally Mann’s ineffective assistance claims fail the first part of the Strickland

test as he has not shown the trial strategy chosen fell below an objective standard of

reasonableness. Usually, great deference is afforded trial counsel’s strategy. See Pettey v. Pash.

No. 4:18-CV-00167-JAR, 2020 WL 5801046, at *7-8 (E.D. Mo. Sept. 29, 2020) (denying an

ineffective assistance of counsel claim where trial counsel’s decision not to object to bolstering

testimony was a matter of sound trial strategy and not objectively unreasonable); see also Driscoll

v. Delo. 71 F.3d 701,706 (8th Cir. 1995) (stating that strong deference is afforded to trial counsel’s

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9 The Supreme Court of South Dakota declined to express an opinion regarding Mann’s Sixth

Amendment ineffective assistance claim until after a state habeas proceeding. See CR 1336.

However, it ultimately affirmed denial of Mann’s state habeas claims and concluded that Mann

did not receive ineffective assistance of counsel under Strickland’s first prong. See HAR 297-98.

4 u

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strategy). Therefore, in addition to § 2254’s deferential standard, Mann bears the burden of

proving his counsel’s trial strategy fell below an objective standard of reasonableness.1®

1. Failure to object to leading questions of the child victim

First, Mann argues that his trial counsel’s failure to object to leading questions of the child

victim,. J.G., fell below an objective standard of reasonableness prejudicing his proceedings. But

part of Mann’s trial strategy was to expose the weak investigation and show that the child victim

could not articulate precise details pf the alleged crimes without prompting from the prosecutor

and that the victim made up the allegations against Mann as revenge for the Manns’s decision to

remove J.G. from their custody to other family members. HAR 240-42. This trial strategy

involved allowing some leading questions in order to ultimately attack the victim-witness’s

credibility by pointing out the deficiency in her testimony and inconsistencies with a prior

interview. HAR 269—73. The state habeas court found this trial strategy reasonable given the

experience of the defense attorneys and the way they articulated their strategy to point to: 1) the

victim’s motives, 2) the leading questions, 3) criticizing Lt. Power’s investigation, and 4)

advancing Mann’s denials and theory about alternative perpetrators. HAR 147. The habeas court

specifically noted how trial counsel utilized the failure to object to J.G.’s leading questions in

10 “

The pivotal question is whether the state court’s application of the Strickland standard was

unreasonable. This is different from asking whether defense counsel’s performance fell below

Strickland’s standard. Were that the inquiry, the analysis would be no different than if, for

example, this Court were adjudicating a Strickland claim on direct review of a criminal conviction

in a United States district court. Under AEDPA, though, it is a necessary premise that the two

questions are different. For purposes of § 2254(d)(1), an unreasonable application of federal law

is different from an incorrect application of federal law. A state court must be granted a deference

and latitude that are not in operation when the case involves review under the Strickland standard

itself.” Harrington, 562 U.S. at 101 (cleaned up and citation omitted)).

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closing arguments.11 This Court agrees with the habeas court that the strategy deployed by Mann’s

trial counsel was reasonable and not ineffective assistance.

Moreover, this Court is not convinced that the use of leading questions with a then-teenage

victim of sexual assault violated any of Mann’s rights to a fair trial. The Eighth Circuit has stated,

“[i]t is not uncommon that the precise physiological details of sexual assault must be elicited by

focused questioning. We have repeatedly upheld the use of leading questions to develop the

testimony of sexual assault victims, particularly children.” United States v. Grassrope. 342 F.3d

i

866, 869 (8th Cir. 2003). Given the deferential standard afforded trial strategy and leeway

provided to questioning sexual assault victims, this Court cannot conclude that the state court

decision affirming the habeas court’s holding that Mann failed to satisfy the first prong of the

Strickland test to be “contrary to, or involve[ing] an unreasonable application of, clearly

!

established Federal law[.]” 28 U.S.C. § 2254(d).

2. Failure to object to vouching of the child witness by Lt Powers12

Next, Mann argues that, trial counsel’s failure to object to vouching by Lt. Powers was

ineffective assistance of counsel- It is unclear whether a state court decided on the merits whether

the failure to object to vouching by Lt. Powers was ineffective assistance of counsel thereby

triggering. § 2254’s deferential standard ofreview.13 The state habeas court instead pointed to the

■

11 Mann’s trial counsel stated during'the closing argument, “[tjypically I would have objected to

that but I wanted you to see how obvious it was when [J.G.] is led through something it’s easy for

her to answer the questions.” HAR 147.

12 Mann argues his trial counsel failed to object to testimony from Jill Perez vouching for the child

witness, which he claims also amounted to ineffective assistance. Doc. 27. However, Mann did

not make this argument in the habeas action and therefore has not exhausted his claim as required

by §2254.

13 See Cullen. 563 U.S. at 181 (“If an application includes a claim that has been adjudicated on

the merits in State court proceedings, § 2254(d), an additional restriction applies.” (cleaned up

and citation omitted)); see also Berry v. Fluke. No. 4:19-CV-04188-RAL, 2022 WL 79849, at *3

1

d >y "9 *

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Supreme Court of South Dakota’s initial affirmance of the conviction in the direct criminal appeal,

but stated alternatively that if it were to evaluate vouching as an ineffective assistance claim, it

would not have found a violation of Mann’s Sixth Amendment right to counsel given the defense’s

strategy to paint the investigation as flimsy and weak. HAR146. Yet the opinion on direct appeal

from the Supreme Court of South Dakota declined to decide ineffective assistance claims. CTR

1336. Eventually, that court affirmed the state habeas court’s denial of Mann’s ineffective

assistance claims. HAR 297-98. Regardless of whether this Court applies § 2254’s deferential

standard or conducts its own de novo review, Mann’s trial counsel’s failure to object to vouching

by Lt. Powers was a reasonable trial strategy and does not constitute ineffective assistance of

counsel.

Trial counsel testified that it was their strategy to characterize the police investigation, as

superficial. HAR 246-48. Thus, when Powers testified that he found the child victim to be

truthful, possibly improperly vouching for the credibility of the child victim, it fit the defense’s

narrative of the investigation—that the police had fallen for the story spun by J.G., and then failed

to conduct a proper investigation. Trial counsel testified that this strategy was based on prior

success using such a defense. HAR 247—48. And the trial strategy was somewhat successful

resulting in Mann’s acquittal on three of four charges. Finally, even if the statements improperly

vouched for the credibility of the child witness, the Eighth Circuit has found curative jury

instructions that explain that the jury is the sole judge of credibility to eliminate any potential

prejudice that may result from improper vouching. See Kellogg v. Skoru 176 F.3d 447, 452-53

(8th Cir. 1999). Here, the jury was provided such an instruction. See CTR 498 (Jury Instruction

(D.S.D. Jan. 7,2022) (“When the state court did not resolve the claim on the merits, federal

courts review the petitioner’s claim de novo.”).

15

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Case 4:21-cv-04158-RAL Document 30 Filed 07/28/22 Page 16 of 18 PagelD #: 342

No. 26). Given the deferential standard afforded to trial strategy, this Court does not find that

Mann’s trial counsel’s approach fell below an objective standard of reasonableness as required by

the Strickland test. Therefore, Mann’s claim that his counsel’s failure to object to Lt Power’s

improper bolstering was ineffective assistance is denied.

3. Failure to object to burden shifting

Finally, Mann argues that his trial counsel’s failure to object to the prosecution’s statements

that Mann believes improperly shifted the burden of proof onto Mann violated the Due Process

Clause of the Fourteenth Amendment.14 See DAR Doc. 12 at 25. As noted above, this Court is

not convinced .that the prosecution made improper statements. In the exchange that Mann takes

issue with, the prosecution simply asked what statements Mann made to police in an effort to assist

their investigation by identifying if there were other possible perpetrators. Mann seemed to have

opened the door to such questions by alleging others may have committed the crime. Moreover,

this Court does not find Mann’s counsel’s failure to object to be unreasonable. “To breach the

unreasonableness threshold, defense counsel must so consistently fail to use objections, despite

numerous and clear reasons for doing so, that counsel’s failure cannot reasonably have been said

to have been part of a trial strategy or tactical choice.” Schauer. 401 F. App’x. at 101 (cleaned up

and citation omitted). And “not drawing attention to a statement may be perfectly sound from a

tactical standpoint.” Id. (cleaned up and citation omitted). Objecting may have drawn more

attention to what efforts Mann did or did not pursue to help investigators, especially when they

were questioning why he refused a second interview.

14 Again, the habeas court declined to review this issue pointing to the Supreme Court’s order

affirming Mann’s conviction on direct appeal. HAR148. It did note that it would not have found

trial strategy’s failure to object to be ineffective assistance. HAR 148. Whether using § 2254’s

deferential standard or conducting de novo review, this Court does not find Mann’s trial counsel’s

failure to object to this line of questioning to be ineffective assistance of counsel.

16

Case 4:21-cv-04158-RAL Document 30 Filed 07/28/22. Page 17 of 18 PagelD #: 343

The failure to object to the prosecution’s confusing articulation of reasonable doubt15

during the closing argument was not ineffective assistance of counsel, especially when the trial

court cured any prejudice in its jury instructions.16 See Coutentos, 651 F.3dat823 (“If an arguably

improper statement made during closing argument was not objected to by defense counsel, we will

only reverse under exceptional circumstances.” (cleaned up and citation omitted)); see also United

States v. Patterson. 684 F.3d 794,799 (8th Cir. 2012) (holding there was no constitutional violation

from a prosecutor’s improper statements during closing because the statements were cured by jury

instructions). The Eighth Circuit has noted that to reverse a jury conviction based on improper

statements during a closing argument, “[t]he remarks must make the entire trial fundamentally

unfair.” Kellogg. 176 F.3d at 451-52 (finding that a prosecutor calling a defendant a sexual

deviant, monster and liar during closing argument, while improper, did not make the trial unfair).

As noted above, Mann must “overcom[ej the strong presumption that defense counsel’s

representation fell within the wide range of reasonable professional assistance.” Delgado, 162

F.3d at 982 (cleaned up and citation omitted). The Sixth Amendment ensures that a defendant

receives a fair trial, not a perfect one, and this Court will not second guess trial counsel’s strategy

regarding an objection to a question or statement that only tenuously shifted the burden onto the

defendant. See Willis. 87 F.3d at 1008: see also Bass v. United States. 655 F.3d 758, 761 (8th Cir.

15 Mann complained of his trial counsel’s failure to object during the prosecution’s closing, in

which the prosecutor stated: “As I mentioned the State has the burden to prove this beyond a

reasonable doubt. There is no way that you are firmly convinced. If you think there is a real

possibility, there is an overwhelming possibility in this case that [Mann] is not guilty.” HAR 57.

Mann argued this contributed to the perception that he had the burden to prove himself innocent.

16 Jury trial instructions two, three, four, five, fourteen, seventeen and twenty-six explained the

presumption of innocence and reasonable doubt standard. CTR 474-77,486,489,498. Instruction

Seventeen specifically stated: “In this case the law raises no presumption against the defendant,

but every presumption of the law is in favor of his innocence. He is not required to prove himself

innocent, or put in any evidence at all upon that subject.” CTR 489.

17

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Case 4:21-cv-04158-RAL Document 30 Filed 07/28/22 Page 18 of 18 PagelD #: 344

2011) (finding no ineffective assistance when the defense did not object to statements the court

did not find improper)1. Therefore, Mann’s claim that his Sixth Amendment right to counsel was

denied by his trial counsel’s failure to object to statements improperly shifting the burden of proof

is denied.

HI.. Conclusion

i

Based on the foregoing reasons, it is

I

:

ORDERED that Defendants’ Motion to Dismiss, Doe. 11-1, is granted. It is further

ORDERED that Mann’s Amended Petition for Writ of Habeas Corpus pursuant to 28

U.S.C. § 2254, Doc. 27, is denied.

DATED this 28th day of July, 2022.

BY THE COURT:

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ROBERTO A. LANGE

CHIEF JUDGE

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Case 4:21-cv-04158-RAL Document 31 Filed 07/28/22 Page 1 of 1 Page ID #: 345

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

4:21 -C V-0415 8-RAL

DANIEL RAY MANN,

Plaintiff,

JUDGMENT OF DISMISSAL

vs.

DOUG CLARK, WARDEN, SDSP; AND

ATTORNEY GENERAL OF SOUTH

DAKOTA,

Defendants.

For the reasons explained in the Order and Opinion Denying Petitioner’s Writ of Habeas

Corpus and Granting Defendants’ Motion to Dismiss, it is hereby

ORDERED, ADJUDGED and DECREED that Petitioner’s claims are dismissed and that

judgment enters for Defendants under Rules 54 and 58 of the Federal Rules of Civil Procedure.

DATED this 28th day of July, 2022.

BY THE COURT:

ROBERTO A. LANGE

CHIEF JUDGE

Append/ %

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

4:21-CV-04158-RAL

DANIEL RAY MANN,

Petitioner,

vs.

WARDEN DOUG CLARK, ATTORNEY

GENERAL FOR THE STATE OF SOUTH

DAKOTA,

ORDER GRANTING PETITIONER’S

MOTION FOR LEAVE TO PROCEED IN

FORMA PAUPERIS ON APPEAL,

DENYING PETITIONER’S MOTION FOR

A CERTIFICATE OF APPEALABILITY,

AND DENYING PETITIONER’S MOTION

FOR APPOINTMENT OF COUNSEL

Respondents.

Petitioner Daniel Ray Mann filed a pro se petition for writ of habeas corpus pursuant to 28

U.S.C. § 2254. Doc. 1. Judgment was entered against Mann, and he filed a notice of appeal.

Docs. 31, 32. Mann now moves for leave to proceed in forma pauperis on appeal and has filed

prisoner trust account statements,

Docs. 34, 34-1.

Mann also moves for a certificate of

appealability and for appointment of counsel. Docs. 33, 34.

I.

Motion for Leave to Proceed in Forma Pauperis on Appeal

The Eighth Circuit historically has looked to district courts to rule on in forma pauperis

motions for appeal and has held that the filing-fee provisions of the PLRA do not apply to hao eas

corpus actions. Malave v. Hedrick. 271 F.3d 1139, 1140 (8th Cir. 2001) (per curiam). To

determine whether a habeas petitioner qualifies for in forma pauperis status, the court need only

assess (1) whether the petitioner can afford to pay the full filing fee, and (2) whether the petitioner s

appeal is taken in “good faith.” 28 U.S.C. § 1915(a)(1), (3).

Mann’s appeal appears to be taken in good faith. Mann has submitted prisoner trust

account statements for the last six months, but he has not submitted a certified prisoner trust

I

account report providing his average monthly deposits and average monthly balance for the last

six months. See Doc. 34-1. This Court determines from the information provided that Mann has

insufficient funds to pay the $505 appellate filing fee, and his motion for leave to proceed in forma

pauperis on appeal, Doc. 34, is granted.

II.

Motion for Certificate of Appealability

Mann seeks a certificate of appealability. Doc. 33. “[A] state prisoner seeking a writ of

habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition. MillerEl v. Cockrell. 537 U.S. 322, 335 (2003) (citing 28 U.S.C. § 2253). “Before an appeal may be

entertained, a prisoner who was denied habeas relief in the district court must first seek and obtain

a [certificate of appealability] from a circuit justice or judge.” Id. at 335-36. A certificate may be

issued “only if the applicant has made a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). A “substantial showing” demonstrates that “reasonable jurists would find

the district court’s assessment of the constitutional claims debatable or wrong.”

!

Slack v.

McDaniel, 529 U.S. 473, 484 (2000). This Court finds that Mann has not made a substantial

showing that his constitutional rights were denied, so no certificate of appealability will issue. See

28 U.S.C. § 2253(c)(2) (“A certificate of appealability may issue... only if the applicant has made

a substantial showing of the denial of a constitutional right.”).

HI.

Motion for Appointment of Counsel

“A pro se litigant has no statutory or constitutional right to have counsel appointed in a

civil case.” Stevens v. Redwing. 146 F.3d 538, 546 (8th Cir. 1998). In determining whether to

appoint counsel to a pro se litigant, the Court considers the complexity of the case, the ability of

the litigant to investigate the facts, the existence of conflicting testimony, and the litigant s ability

to present his claims. Id At this time, Mann’s claims do not appear to be too complex, and Mann

2

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is able to investigate the facts and present his claims adequately. Thus, Mann s motion for

appointment of counsel, Doc. 34, is denied.

ORDERED that Mann’s motion for leave to proceed in forma pauperis on appeal, Doc. 34,

is granted, It is further

ORDERED that Mann’s motion for a certificate of appealability, Doc. 33, is denied. It is

finally

ORDERED that Mann’ s motion for appointment of counsel, Doc. 34, is denied.

DATED August rt* 2022.

BY THE COURT:

f

ROBERTO A. LANGE

CHIEF JUDGE

3

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 22-2750

Daniel Ray Mann

Petitioner - Appellant

v.

Doug Clark, Warden, SDSP; Attorney General of South Dakota

Respondents - Appellees

Appeal from U.S. District Court for the District of South Dakota - Southern

(4:21-cv-04158-RAL)

JUDGMENT

Before COLLOTON, GRUENDER, and GRASZ, Circuit Judges.

This appeal comes before the court on appellant's application for a certificate of

appealability. The court has carefully reviewed the original file of the district court, and the

application for a certificate of appealability is denied. The appeal is dismissed.

October 04, 2022

!

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

/s/ Michael E. Gans

A

16

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 22-2750

Daniel Ray Mann

Appellant

v.

Doug Clark, Warden, SDSP and Attorney General of South Dakota

Appellees

Appeal from U.S. District Court for the District of South Dakota - Southern

(4:21 -cv-0415 8-RAL)

ORDER

The petition for rehearing en banc is denied. The petition for rehearing by the panel is

also denied.

December 21, 2022

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

/s/ Michael E. Gans

Additional material

from this filing is

available in the

Clerk's Office.