(specially concurring).
By this opinion, I trust that it is abundantly clear that the prosecutors of this state (all lawyers for that matter) should not/cannot submit ex parte briefs to a judge. “Not only is it a gross breach of the appearance of justice when the defendant’s principal adversary is given private access to the ear of the court, it is a dangerous procedure.” Haller v. Robbins, 409 F.2d 857, 859 (1st Cir.1969).
“An ex parte communication between a trial court and government counsel ‘[i]n addition to raising questions of due process ... involves a breach of legal and judicial ethics.* Regardless of the propriety of the court’s motives in such a case ... the practice should be discouraged since it undermines confidence in the impartiality of the Court.’ ” Carroll v. Princess Anne, 393 U.S. 175, 183, 89 S.Ct. 347, 352, 21 L.Ed.2d 325 (1968). Accord: In re Taylor, 567 F.2d 1183, 1188 (2nd Cir.1977).
*424It is respectfully suggested that each of our trial judges in South Dakota carefully determine if counsel served a trial brief on his adversary; likewise, it is suggested that each lawyer reflect, by Certificate of Service, that service was made upon his adversary. With this type of legal mechanics, we should not have ex parte communications on briefs. Obviously, a Certificate of Service obviates all doubts on all legal documents. It proves service.
Although the habeas court found that the ex parte communication between the State and the trial court was “improper” and indefensible, it held:
In light of the record, the testimony of Judge Heege and the fact that there is [sic] no specific instances in the record which were pointed out to the court reflecting an impact on the trial due to submission of the brief, the court finds that such submission did not deprive applicant O’Connor of assistance of counsel as guaranteed by the Sixth Amendment.
For the consideration of any federal reviewing authority, I wish to point out that a full and fair factual hearing was held below (at the state habeas corpus hearing) and the impact of the state’s ex parte brief was deeply probed by questioning Judge Heege. There is hard evidence to establish that Judge Heege made impartial, independent rulings in O’Connor’s case, including very difficult evidentiary questions. Judge Heege testified that all rulings were made upon the evidence and controlling state law; further, O’Connor’s counsel had the opportunity to make objections and present arguments. The point is: An open hearing was held and due process was afforded on the critical issues in the case. Where there is an ex parte communication, such as we have in this case, the burden of establishing a lack of prejudice rests upon the prosecution. Prejudice is presumed. See, United States v. Hackett, 638 F.2d 1179, 1189 (9th Cir.1980), cert, denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981). Here, this presumption fades because O’Connor’s counsel was accorded the right to (1) cross-examine (2) present evidence (3) present legal authorities. A due process violation would be a constitutional violation. Prejudice must be established before a constitutional violation is established. State v. Wood, 77 S.D. 120, 86 N.W.2d 530, 533 (1957). There is no prejudice, in my opinion, because a full hearing was developed below, in the habeas corpus court, granting O’Connor a meaningful opportunity to be heard. If the habeas corpus court found that there was prejudice to O’Con-nor, the habeas court would have set aside O’Connor’s convictions.
Under 28 U.S.C. § 2254(d) (1988) the findings of the habeas court, after a full and fair fact-finding hearing, “... shall be presumed to be correct” unless the applicant can establish one of eight exceptions under that federal statute. I would not presume to act as a federal judge but I am convinced that this Court, which is the highest court in this state, has deeply reflected upon all of O’Connor’s contentions in his brief, and the habeas state court likewise accorded O’Connor a fair determination, after an exhaustive hearing. See, Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). I cannot find any of the eight exceptions lurking in the proceedings below which would open this Court’s affirmance of the state habeas corpus court. Rather, I take comfort in the holding of Townsend v. Sain, supra.
Concerning Justice Sabers’ special writing herein, it is noted that his special concurrence does not follow our rule in South Dakota, regarding habeas corpus relief, set forth in McCafferty v. Solem, 449 N.W.2d 590 (S.D.1989). Sabers, J.’s, special concurrence herein follows his special concurrences in Everitt v. Solem, 412 N.W.2d 119 (S.D.1987); Podoll v. Solem, 408 N.W.2d 759 (S.D.1987); and Goodroad v. Solem, 406 N.W.2d 141 (S.D.1987). Everitt, Podoll, and Goodroad support the language of this Court’s scope of review concerning the remedy of post-conviction habeas corpus, as restricted by the provisions of SDCL 21-27-16. If one reads Goodroad, 406 N.W.2d at 143, this comment looms: “While we have allowed for some expansion in the subject matter of habeas corpus, nonconstitutional, nonjurisdictional de*425fects cannot be reviewed on habeas corpus.” (emphasis supplied mine).
It is respectfully suggested that Judge Heege is not accused of a breach of judicial ethics hereby.