#27345-rev&rem-JMK
2016 S.D. 76
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
KEVIN L. HUGHBANKS, Petitioner and Appellant,
v.
BOB DOOLEY, Warden,
South Dakota State Penitentiary, Respondent and Appellee.
* * * *
APPEAL FROM THE CIRCUIT COURT
OF THE SECOND JUDICIAL CIRCUIT
LINCOLN COUNTY, SOUTH DAKOTA
* * * *
HONORABLE STUART L. TIEDE
Retired Judge
* * * *
DAVID A. STUART of
Peterson, Stuart, Rumpca &
Rasmussen, Prof. LLC
Beresford, South Dakota Attorneys for petitioner
and appellant.
MARTY J. JACKLEY
Attorney General
PAUL S. SWEDLUND
Assistant Attorney General
Pierre, South Dakota Attorneys for respondent
and appellee.
* * * *
CONSIDERED ON BRIEFS
ON AUGUST 18, 2016
OPINION FILED 10/26/2016
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KERN, Justice
[¶1.] Kevin Hughbanks appealed a summary judgment denying his petition
for habeas corpus relief from his convictions for two counts of possession of child
pornography and as a habitual offender. Hughbanks’s attorney filed his brief as a
“Korth brief” alleging a lack of arguably meritorious issues for appeal. See State v.
Korth, 2002 S.D. 101, 650 N.W.2d 528. Upon consideration of the case, we
identified two arguably meritorious issues for appeal and directed supplemental
briefing on those issues. See id. ¶ 16 n.6, 650 N.W.2d at 535 n.6. After completion
of supplemental briefing, we again considered the case. We reverse and remand.
Facts and Procedural History
Conviction
[¶2.] On March 20, 2007, Hughbanks pleaded guilty in Lincoln County to
two counts of possession of child pornography and admitted the Part II Information
alleging he was a habitual offender. He was sentenced on June 19, 2007, to ten
years in the penitentiary on the first count and to a consecutive ten years on the
second count with the latter sentence suspended. A written judgment was filed on
June 25, 2007. Hughbanks did not directly appeal his conviction and it became
final on July 26, 2007.
Habeas in Circuit Court
[¶3.] Hughbanks filed his only petition for a writ of habeas corpus on April
2, 2014, nearly seven years after his conviction became final. He alleged multiple
claims of ineffective assistance of counsel and a Miranda violation. The court
appointed counsel and issued a provisional writ of habeas corpus requiring a return.
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The State filed its return on April 24, 2014, raising a defense under the two-year
statute of limitations for habeas corpus actions set forth in SDCL 21-27-3.3. 1 This
statute, effective July 1, 2012, replaced a prior statute that generally permitted a
habeas action to be “filed at any time[.]” See 2012 S.D. Sess. Laws ch. 118, §§ 1 & 3.
On May 21, the State filed a motion for summary judgment along with a statement
of undisputed facts in support of its statute of limitations defense. The return,
motion, and statement asserted that the petition was time barred under SDCL 21-
27-3.3(1) because Hughbanks filed his petition more than two years after his
conviction was final in 2007. Further the State argued that none of the exceptions
1. SDCL 21-27-3.3 provides:
A two-year statute of limitation applies to all applications
for relief under this chapter. This limitation period shall
run from the latest of:
(1) The date on which the judgment became final by
the conclusion of direct review or the expiration of
the time for seeking such review;
(2) The date on which the impediment to filing an
application created by state action in violation of
the constitution or laws of the United States or of
this state is removed, if such impediment
prevented the applicant from filing;
(3) The date on which the constitutional right asserted
in the application was initially recognized by the
Supreme Court of the United States or the
Supreme Court of this state if the right has both
been newly recognized and is retroactively
applicable to cases on collateral review; or
(4) The date on which the factual predicate of the
claim or claims presented could have been
discovered through the exercise of due diligence.
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provided for by subdivisions (2) through (4) of SDCL 21-27-3.3 applied so as to
permit Hughbanks’s petition. Hughbanks countered with his own statement of
undisputed material facts asserting that he did not discover the factual predicates
for his claims until December 2013 and, therefore, his petition was timely under
SDCL 21-27-3.3(4).
[¶4.] A hearing was held on July 8, 2014. Hughbanks testified 2 that he
lacked access to legal counsel and legal materials, which deprived him of the ability
to appreciate the legal significance of the predicate facts for his habeas claims until
December 2013. Therefore, Hughbanks argued that his habeas petition was timely
under SDCL 21-27-3.3(4). The habeas court rejected Hughbanks’s claims in a
memorandum decision filed on August 26, 2014, and an amended decision filed
October 30, 2014. The court reasoned that all of the factual predicates for
Hughbanks’s claims were known to him no later than 2010. Further, the court
found that Hughbanks had adequate access to counsel and legal materials to
appreciate the legal significance of those facts before that time. Accordingly, the
court filed an amended judgment and order on November 4, 2014, granting the
State’s motion for summary judgment, quashing the provisional writ of habeas
corpus and dismissing Hughbanks’s petition with prejudice.
Initial Habeas Appeal
[¶5.] On January 8, 2015, the habeas court granted Hughbanks’s motion for
a certificate of probable cause to appeal the denial of his claim under SDCL 21-27-
2. Although the hearing was on a motion for summary judgment, the habeas
court permitted Hughbanks to testify on the motion.
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3.3(4). Hughbanks filed a notice of appeal to this Court. His counsel later filed
Hughbanks’s brief as a Korth brief claiming a lack of arguably meritorious issues
for appeal. Consistent with Korth, counsel then briefed the issues requested by
Hughbanks, including the issue on which the certificate of probable cause was
granted. But counsel also raised a new claim, arguing that it was error to
retroactively apply the two-year statute of limitations set forth in SDCL 21-27-3.3,
which took effect July 1, 2012, to a habeas petition arising from Hughbanks’s 2007
conviction.
[¶6.] In its response, the State agreed with certain aspects of Hughbanks’s
retroactivity argument. In view of the State’s position, this Court directed
supplemental briefing on the following issues:
1) Whether the habeas court erred in retroactively
applying SDCL 21-27-3.3 to Hughbanks’s action.
See, e.g., Eagleman v. Diocese of Rapid City, 2015
S.D. 22, 862 N.W.2d 839.
2) Whether in retroactively applying SDCL 21-27-3.3
to Hughbanks’s action the habeas court had
authority to delay commencement of the two-year
limitations period until July 1, 2012, the effective
date of the statute.
Upon completion of the supplemental briefing, we now consider the case.
ANALYSIS
Issue 1
[¶7.] Whether the habeas court erred in retroactively applying
SDCL 21-27-3.3 to Hughbanks’s action.
[¶8.] Hughbanks argues that the habeas court erred in retroactively
applying the statute of limitations in SDCL 21-27-3.3, passed in 2012, to his habeas
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petition because his conviction became final in 2007. Application of SDCL 21-27-
3.3(1) immediately rendered any habeas action commenced by Hughbanks after
2009 untimely unless one of the exceptions provided for in subdivisions (2) through
(4) of the statute applied. None of the exceptions applied to Hughbanks or applied
in a manner beneficial to him. He therefore contends that the court should have
delayed commencement of the two-year limitations period until July 1, 2012, the
effective date of SDCL 21-27-3.3, giving him time to file his habeas action. If
allowed, this would make his habeas petition, filed in April 2014, timely. The State
agrees with Hughbanks’s argument, citing its concern that retroactive application
of the statute would otherwise cut off Hughbanks’s previously viable habeas claims
in violation of due process.
[¶9.] There is support for the parties’ position. As explained in 54 C.J.S.
Limitations of Actions § 16 (2016):
When . . . a limitations period is statutorily shortened or
created where none existed before, federal due process
requires that potential litigants be afforded a reasonable
time for the commencement of an action before the bar
takes effect. Thus, the legislature may shorten a
limitations period and apply it retroactively, provided
that a reasonable opportunity is given to exercise a
remedy which would otherwise be materially affected by a
new statute of limitations. If a claimant does not file
within such reasonable time, the claim is barred. What is
a reasonable time is to be determined by the legislature,
unless the time allowed is manifestly so insufficient that
the statute becomes a denial of justice.
See also Kotval v. Gridley, 698 F.2d 344, 347 n.5 (8th Cir. 1983) (noting that
“retroactive application [of an amendment shortening a limitations period] is
constitutional so long as a plaintiff is not suddenly cut off from bringing an action,
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but is given a reasonable opportunity after the effective date of the statute to bring
suit before his claim is absolutely barred by the new enactment”).
[¶10.] SDCL 21-27-3.3 is patterned after the statute of limitations for federal
habeas corpus actions. Compare SDCL 21-27-3.3, with 28 U.S.C. § 2244(d)(1)
(setting forth the statute of limitations for a federal habeas corpus action for a
person in custody pursuant to a judgment of a state court). Because of due process
concerns such as those discussed above, federal courts have interpreted the federal
habeas statute of limitations as permitting an additional one-year period from the
effective date of the statute for applicants to bring claims that would have otherwise
been cut off by the statute when it took effect. As explained by the Eighth Circuit
Court of Appeals:
Prior to enactment of the AEDPA,[ 3] federal prisoners
could collaterally attack their convictions . . . “at any
time.” The AEDPA changed that right overnight, limiting
the time period for filing § 2255 motions to one year from
various triggering events. Federal prisoners whose
convictions were final, and to whom none of the other
triggering events applied, were suddenly without
recourse. We recently joined the other circuits that have
addressed this question in holding that a one-year grace
period provides a reasonable time period to avoid the
unjust result that would follow the application of the
AEDPA’s one-year time limit on preexisting causes of
action.
Moore, 173 F.3d at 1134-35 (citations omitted) (footnote added). The grace period or
additional period for bringing claims discussed in Moore has been recognized by the
3. “AEDPA” stands for “the Antiterrorism and Effective Death Penalty Act of
1996,” which revised the federal habeas statutes of limitation. Moore v.
United States, 173 F.3d 1131, 1133 (8th Cir. 1999).
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United States Supreme Court. See Wood v. Milyard, __ U.S. __, __, 132 S. Ct. 1826,
1831, 182 L. Ed. 2d 733 (2012) (noting that, “[f]or a prisoner whose judgment
became final before AEDPA was enacted, the one-year limitations period runs from
the AEDPA’s effective date: April 24, 1996”).
[¶11.] Relying on federal authorities such as those above, both Hughbanks
and the State urge this Court to recognize an additional two-year period 4 from the
2012 effective date of SDCL 21-27-3.3 in order to give habeas petitioners who would
otherwise be cut off by the new statute a reasonable time to file their claims. Both
sides agree that recognition of such a period would make Hughbanks’s 2014 habeas
petition timely, requiring a reversal and remand of the summary judgment against
him.
[¶12.] Ordinarily this Court does not apply a new statute of limitations
retroactively to pending litigation absent an expression of legislative intent for such
application. See Eagleman, 2015 S.D. 22, ¶ 16, 862 N.W.2d at 846 (noting that the
“Legislature did not express an intent” that an amended statute of limitations
should apply retroactively “to pending litigation” and deeming it “unsound to apply”
the statute “to abruptly terminate plaintiffs’ pending suits”). 5 In fact this Court has
4. The additional two-year period proposed by Hughbanks and the State
corresponds with the two-year statute of limitations in SDCL 21-27-3.3 just
as the additional one-year period recognized by the federal courts corresponds
with the one-year statute of limitations for federal habeas corpus actions.
5. See Stratmeyer v. Stratmeyer, 1997 S.D. 97, ¶¶ 14-17, 567 N.W.2d 220, 223-
24 (applying the statute of limitations against civil actions for childhood
sexual abuse retroactively based upon expressions of legislative intent in the
enactment that it should be so applied); Koenig v. Lambert, 527 N.W.2d 903,
(continued . . .)
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previously declined to retroactively apply an amended statute of limitations/repose
to actions commenced before the effective date of the amendment. Id. ¶ 15, 862
N.W.2d at 846 (noting that this Court has “never held that a newly enacted
limitations period applies retroactively to a pending lawsuit”).
[¶13.] Nonetheless, this case does not concern pending litigation. Hughbanks
commenced his action after the effective date of SDCL 21-27-3.3. Therefore, the
ordinary prohibition against retroactive application of a new statute of limitations
to pending litigation does not apply here. But as the Tenth Circuit Court of Appeals
has noted, applying a shortened limitations period retroactively in a habeas action
“could mean that a prisoner whose conviction became final more than a year before
the AEDPA went into effect would have no avenue to bring a habeas petition
because his petition would always be out of time under the new language.” Hoggro
v. Boone, 150 F.3d 1223, 1225 (10th Cir. 1998), In Hoggro, a federal habeas
petitioner commenced his action over a year after the effective date of the AEDPA,
which shortened the limitations period for such actions to a year after the conviction
became final. In view of the problems posed by retroactive application, the Tenth
Circuit joined other circuits holding “that for prisoners whose convictions became
(. . . continued)
904 (S.D. 1995) (citing SDCL 2-14-21 in holding that a statute of limitations
should not be applied retroactively absent the “expression of such an
intention by the South Dakota Legislature”), overruled on other grounds by
Stratmeyer, 1997 S.D. 97, ¶ 21, 567 N.W.2d at 224.
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final before April 24, 1996,[ 6] the one-year statute of limitation does not begin to
run until April 24, 1996.” Id. 7
[¶14.] Similarly, in United States v. Craycraft, 167 F.3d 451 (8th Cir. 1999), a
petitioner seeking to vacate his sentence filed his petition and amendments
approximately a year after the effective date of the AEDPA. The AEDPA also
changed the limitations period for these petitions to a year after the conviction
becoming final. Id. at 456. In reviewing the timeliness of the petition and
amendments, the Eighth Circuit also joined “the majority of circuits in holding that
[the statute’s] one-year time limit did not begin to run prior to April 24, 1996.” Id.
In Moore, the Eighth Circuit relied in part on Craycraft in referring to “the one-year
grace period” for applying “the AEDPA’s one-year time limit [to] preexisting causes
of action.” 173 F.3d at 1135 (citing Paige v. United States, 171 F.3d 559, 560-61 (8th
Cir. 1999); Craycraft, 167 F.3d at 456).
[¶15.] These authorities clarify that the additional one-year period recognized
by the federal courts for commencing actions under the AEDPA resulted from
judicial interpretations of how to apply the new statute of limitations in the act to
6. The AEDPA’s effective date is April 24, 1996. See Hoggro, 150 F.3d at 1226.
7. The Tenth Circuit Court of Appeals cited Burns v. Morton, 134 F.3d 109, 111
(3d Cir.1998), Calderon v. U. S. Dist. Court for the Cent. Dist. of Cal., 128
F.3d 1283, 1287 (9th Cir.1997), overruled on other grounds, 163 F.3d 530, 539
(9th Cir. 1998), and Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir.1996) (en
banc), rev’d on other grounds, 521 U.S. 320, 117 S. Ct. 2059, 138 L. Ed. 2d
481 (1997). See also United States v. Simmonds, 111 F.3d 737, 744-46 (10th
Cir.1997) (applying the same rule against retroactivity to the parallel one-
year statute of limitations for federal post-conviction relief under 28 U.S.C.A.
§ 2255), overruled on other grounds, 322 F.3d 1256, 1261 (10th Cir. 2003).
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preexisting causes of action commenced after the act’s effective date and suddenly
cut off by the act’s strict application. To avoid a cut off that would violate the
Constitution, the courts held in cases like Hoggro, Craycraft, and Moore that the
new, one-year statute of limitations would not begin to run against preexisting
causes of action until AEDPA’s effective date on April 24, 1996, and would not
expire until April 24, 1997. This is the source of the additional one-year period for
commencing such actions recognized in cases such as Moore. 173 F.3d at 1135.
[¶16.] Hughbanks’s habeas action falls into a similar category of cases
because Hughbanks did not commence his action until after the effective date of
SDCL 21-27-3.3. Like the federal courts, we similarly conclude, based on our
judicial interpretation, that the habeas court did not err in applying SDCL 21-27-
3.3 to Hughbanks’s action. 8 However, we must still decide whether the habeas
court could grant Hughbanks a judicially-created period of extension.
Issue 2
[¶17.] Whether, in retroactively applying SDCL 21-27-3.3 to
Hughbanks’ action, the habeas court had authority to delay
commencement of the two-year limitations period until July 1,
2012, the effective date of the statute.
[¶18.] As set forth under Issue 1, the additional period recognized by the
federal courts for timely commencement of federal habeas actions under the new
statute of limitations in the AEDPA was a product of those courts’ judicial
8. This conclusion is consistent with Engesser v. Young, 2014 S.D. 81, ¶ 27, 856
N.W.2d 471, 481 in which we applied the 2012 amendments to the state
habeas corpus law, including SDCL 21-27-3.3, to a 2001 conviction where the
habeas action was not commenced until 2013.
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construction or interpretation of that act. It is similarly within this Court’s power
to interpret statutes. See Hot Springs Indep. Sch. Dist. No. 10 v. Fall River
Landowners Ass’n, 262 N.W.2d 33, 39 (S.D. 1978) (noting that “[t]he interpretation
of an existing statute is a judicial . . . function” (quoting Des Moines Ind. Common
Sch. Dist. v. Armstrong, 95 N.W.2d 515, 521 (Iowa 1959))). See also State v. Custer,
871 N.W.2d 243, 257 (Neb. 2015) (noting that “a court’s proper role is to interpret
statutes and clarify their meaning).” Statutory interpretation “is a question of law.”
State v. Clements, 2013 S.D. 43, ¶ 6, 832 N.W.2d 485, 486. “When a court is faced
with a question of statutory construction, it is not making new law, but rather
interpreting existing law.” Burgard v. Benedictine Living Communities, 2004 S.D.
58, ¶ 16, 680 N.W.2d 296, 301. This includes interpreting the proper application of
statutes of limitation. See, e.g., id; Peterson, ex rel. Peterson v. Burns, 2001 S.D.
126, 635 N.W.2d 556 (determining as a matter of statutory construction that the
medical malpractice statute of limitations covered wrongful death actions caused by
medical malpractice).
[¶19.] SDCL 21-27-3.3, like the AEDPA, contains no explicit provision
governing its application to preexisting causes of action not commenced until after
the effective date of the statute and suddenly cut off by its provisions. The language
of the statute, however, is taken almost verbatim from comparable provisions in the
AEDPA. Compare SDCL 21-27-3.3, with 28 U.S.C. § 2244(d)(1), and 28 U.S.C. §
2255(f). Furthermore, it was passed almost sixteen years after the AEDPA and,
presumably, with cognizance of the numerous federal court decisions interpreting
that act. See St. Paul Mercury Ins. Co. v. Andrews, 321 N.W.2d 483, 485-86 (N.D.
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1982) (noting the presumption that when the legislature “adopt[s] a statute from
another jurisdiction, [it] adopt[s] the contemporaneous construction of its provisions
by the courts of that jurisdiction”). Accord Melby v. Anderson, 64 S.D. 249, 266
N.W. 135, 136 (1936) (noting that where the Legislature adopts the law of another
state, it is “the general presumption that the South Dakota Legislature intended to
enact [the] law with the meaning that the courts of [the other state] had previously
placed upon [it]”). Therefore, we interpret SDCL 21-27-3.3 in a manner consistent
with the federal court decisions discussed above. See Waterman v. Morningside
Manor, 2013 S.D. 78, ¶ 18, 839 N.W.2d 567, 572 (noting that where a federal
version of a rule “is equivalent to our rule . . . [this Court] can look to decisions from
federal courts for analytical support”). Such construction and the constitutional
considerations underlying the federal court decisions are also in accord with the
principle that it is this Court’s duty to apply a statute “in a constitutional manner”
and “to choose [an] interpretation, if feasible, that will uphold the validity of the
statute.” In re A.L., 2010 S.D. 33, ¶ 19, 781 N.W.2d 482, 487.
[¶20.] Although not controlling, the legislative history of SDCL 21-27-3.3
supports interpreting the statute in a manner consistent with the federal court
decisions. See In re Adoption of A.A.B., 2016 S.D. 22, ¶ 9, 877 N.W.2d 355, 361
(quoting Jensen v. Turner Cty. Bd. of Adjustment, 2007 S.D. 28, ¶ 5, 730 N.W.2d
411, 413) (referring to legislative history “is justified . . . when legislation is
ambiguous, or its literal meaning is absurd or unreasonable”). Testimony before
legislative committees about the statute from the State Attorney General and an
individual legislator who supported the bill reveals that the Legislature intended
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the statute to function consistently with the AEDPA. Here, SDCL 21-27-3.3, like
the AEDPA, does not clearly indicate that it applies to convictions made final before
passage of the statute. And misapplication of the statute risks unreasonably
cutting off such actions in violation of the Constitution as noted in cases such as
Kotval, 698 F.2d at 347 n.5. Therefore, this is a suitable case for consideration of
legislative history, although the views expressed by individuals before legislative
bodies are not always indicative of legislative intent. See Eagleman, 2015 S.D. 22, ¶
11, 862 N.W.2d at 845 (noting that “the motivation of a few representatives cannot
be attributed to the Legislature as a whole”).
[¶21.] We are aware of holdings in some jurisdictions that courts should not
fill a legislative gap created by failing to provide for a reasonable time for filing suit
on preexisting causes of action when the legislature shortens a statute of
limitations. See, e.g., Adams & Freese Co. v. Kenoyer, 116 N.W. 98, 99 (N.D. 1908)
(noting that if the legislature fails to fix a reasonable time for bringing existing
causes of action under an amended statute of limitations, “the courts cannot . . .
supply this legislative lapse”). 9 However, we have not identified a holding in a case
similar to this one where the Legislature adopted the amended statute of
9. See also Falgout v. Dealers Truck Equip. Co., 748 So. 2d 399, 408 (La. 1999)
(holding that “[w]hen the legislature enacts a prescriptive [limitations]
statute that potentially affects existing causes of action and fails to require
parties to exercise their vested rights within a reasonable time, ‘the courts
should refrain from supplying this legislative lapse’” (quoting Maltby v.
Gauthier, 506 So. 2d 1190, 1193 (La. 1987))); Flippin v. Jarrell, 270 S.E.2d
482, 487 (N.C. 1980) (noting that “[t]he fixing of the time within which to
bring suit” on existing causes of action when a statute of limitations is
shortened “is not within the power of the judiciary” (quoting Barnhardt v.
Morrison, 101 S.E. 218, 221 (N.C. 1919)).
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limitations nearly verbatim from another jurisdiction with a significantly developed
body of case law interpreting how to apply the statute to preexisting causes of
action. Moreover, unlike cases from other courts, we have legislative history
supporting application of the amended statute in the same manner as in the
original jurisdiction. Under the unique circumstances of this case, we believe it is
consistent with legislative intent to interpret the amended statute in the same
manner as in the original jurisdiction, i.e., the federal courts. See Dale v. Young,
2015 S.D. 96, ¶ 6, 873 N.W.2d 72, 74 (noting that the purpose of statutory
construction is “to determine legislative intent” (quoting In re West River Elec.
Ass’n, Inc., 2004 S.D. 11, ¶ 15, 675 N.W.2d 222, 226)). This means that the habeas
court had authority to grant Hughbanks an additional two years from July 1, 2012,
to permit the timely filing of his habeas action. Granting that period would have
rendered Hughbanks’s action, filed on April 2, 2014, timely. The court erred in
granting summary judgment for the State based upon a violation of the statute of
limitations.
CONCLUSION
[¶22.] With reference to Issue 1, we hold that the habeas court did not err in
applying SDCL 21-27-3.3 to Hughbanks’s action because Hughbanks commenced
the action after the effective date of the statute. As to Issue 2, we hold that, in
applying SDCL 21-27-3.3 to Hughbanks’s action, the habeas court had the requisite
authority to delay commencement of the two-year limitations period until July 1,
2012, the effective date of the statute. Because Hughbanks filed the action within
the two years, the habeas court erred in granting summary judgment against
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Hughbanks for violating the statute of limitations in SDCL 21-27-3.3. Having
determined that the habeas court erred in granting summary judgment, we do not
address Hughbanks’s argument under SDCL 21-27-3.3(4) concerning the date of
discovery of the factual predicates for his claims.
[¶23.] Reversed and remanded.
[¶24.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and
WILBUR, Justices, concur.
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