Troy Haase v. Douglas Weber

MEIERHENRY, Justice.

[¶ 1.] Haase made his third application for a writ of habeas corpus concerning his 1988 conviction for kidnapping and rape. This application was dismissed by the trial court on procedural grounds. Haase appeals.

FACTS

[¶ 2.] Haase was convicted of kidnapping and rape in 1988. The conviction was affirmed by this Court on direct appeal. State v. Haase, 446 N.W.2d 62 (S.D.1989). *669In 1991 Haase filed his first application for a writ of habeas corpus raising numerous issues, including ineffective assistance of trial and appellate counsel. His court appointed attorney reviewed the application and relevant records. After her review, she wrote a letter to the judge stating that no viable or colorable habeas corpus claims existed and there was no basis for a hearing. Subsequent to receiving the letter, the circuit court denied the writ stating: “That based upon the investigation of petitioner’s attorney there are no issues, factual or legal, which require that this court schedule and hold a hearing upon the petitioner’s allegations.” (Emphasis added.) Haase’s certificate of probable cause was also denied by both the circuit court and this Court.

[¶ 3.] Seven years after Haase’s first habeas application was denied, Haase filed a second habeas application. His initial pro se application asserted the same grounds as his first habeas application in addition to a new ground concerning the Reiman/Curtis test.1 An amended application dropped the grounds that were presented in the first habeas application and asserted only the new Reiman/Curtis issue. The amended application was denied on two procedural grounds: first, because of prejudice to the state because it was filed more than five years after the judgment; and second, because Haase failed to prove reasonable cause for not raising the Reiman/Curtis issue in his first habeas application. See SDCL 21-27-3.2; SDCL 21-27-16.1. Denial on these procedural grounds resulted in Haase still not having had a judge review the merits of any of his habeas issues.

[¶4.] The appeal now before us involves Haase’s third application for writ of habeas corpus. His only asserted ground for relief in this third habeas application is ineffective assistance of his second habeas counsel. Haase alleges his attorney was ineffective because he failed to appeal the denial of his second habeas petition within the required time. Consequently, he has been procedurally barred from state appellate review. Further, he has been procedurally barred from filing a federal habeas petition because he did not appeal in state court. In an effort to overcome these procedural bars, Haase’s current habeas application seeks a new opportunity to appeal the denial of his second habeas application.

DECISION

[¶ 5.] The propriety of this third habeas and the remedy it seeks is clearly questionable. We have often explained that habeas is a “collateral attack on a final judgment.” Knecht v. Weber, 2002 SD 21, ¶ 4, 640 N.W.2d 491, 494 (citations and quotations omitted). This habeas makes no collateral attack on the final criminal trial judgment. However, the facts of this case present a unique and troubling situation. No judge has ever made an independent review of any of Haase’s grounds for habeas relief. Haase has suffered this fundamental injustice through no fault of his own but, rather, through the mistakes of prior counsel and courts. Now, as a result of various proee-*670dural barriers, it is unlikely that his habe-as grounds could ever be reviewed by a judge on their merits. Therefore, under the unique facts of this case, we believe it is in the best interests of justice and judicial efficiency to remand this case back to the trial court in order for the court to proceed directly to the merits of Haase’s habeas claims, thereby providing Haase with a judicial determination of the merits of his claims and circumventing the procedural purgatory within which Haase now finds himself. Cf. People v. Gaines, 105 I11.2d 79, 85 IlLDec. 269, 473 N.E.2d 868, 875 (1984) (“The strict application of the doctrine of res judicata may be relaxed, however, where fundamental fairness so requires.”) (citations and quotations omitted). Therefore, we remand to the trial court for a new hearing and instruct it to consider any and all of Haase’s asserted grounds for habeas relief on their merits.

[¶ 6.] SABERS and KONENKAMP, Justices, concur. [¶ 7.] GILBERTSON, Chief Justice, and ZINTER, Justice, dissent.

. The Reiman/Curtis test pertains to situations where a kidnapping occurs in conjunction with another crime. State v. Curtis, 298 N.W.2d 807 (S.D.1980); State v. Reiman, 284 N.W.2d 860 (S.D.1979). In Reiman we stated: "We find it unreasonable to sustain a conviction for kidnapping which is unsupported by evidence aside from the acts incidental only to another crime.” Id. at 873. "[Ujnder Reiman a kidnapping can be charged when 1) the kidnapping is not an essential element of some other clearly identified crime and 2) the victim is exposed to an increased risk of harm because of the kidnapping.” State v. Running Bird, 2002 SD 86, ¶ 23, 649 N.W.2d 609, 614 (citations and quotations omitted).