Berry v. Fluke et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
KEVIN BERRY,
vs.
BRENT FLUKE, and
FOR THE STATE OF
Plaintiff,
ATTORNEY GENERAL
SOUTH DAKOTA,
Defendants.
4:19-CV-04188-RAL
OPINION AND ORDER GRANTING IN
PART MOTION TO DISMISS
Petitioner Kevin Berry filed a pro se petition for a writ of habeas corpus under 28 U.S.C.
§ 2254. Doc.1. Respondents Brent Fluke and the Attorney General for the State of South Dakota
moved to dismiss Berry's petition, arguing that his claims are procedurally defaulted. Docs. 4, 5.
For the reasons explained below, this Court grants the Respondents' motion in part.
I. Facts1
lThis Court has taken judicial notice of the state court records from Berry's criminal case and two
state habeas cases. See Miller v. Young, 18-CV-04137-KES, 2019 WL 4935491, at *5 (D.S.D.
Feb. 5,2019) (taking judicial notice of state court records on a motion to dismiss a habeas petition).
This Court previously has taken judicial notice of state court records in a § 2254 case, but first
gave the parties a chance to object in accordance with Federal Rule of Evidence 201(e). See
Blaknev v. Young, 4.-17-CV-04022-RAL, 2019 WL 1388628, at *2 (D.S.D. Mar. 27, 2019); Fed.
R. Evid. 201(e) ("On timely request, a party is entitled to be heard on the propriety of taking
judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before
notifying a party, the party, on request, is still entitled to be heard."). Rather than delaying this
decision further to allow parties to be heard first on taking judicial notice of state court records,
this Court enters this opinion and order but will allow either party to object to the taking of judicial
notice and to provide reason for any such objection.
1
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Berry was arrested in the fall of 2016 for the alleged rape of his minor daughter, K.M.B.
A grand jury charged him with first-degree rape; three counts of second-degree rape; three counts
of aggravated incest; solicitation of a minor; and three counts of simple assault. Berry entered
into a plea agreement and appeared before State Circuit Court Judge Susan Sabers for a change of
plea hearing. As part of the plea agreement, the prosecutor filed a complaint and an information
charging Berry with attempted sexual contact with a child under age sixteen and abuse or cruelty
to a minor. The plea agreement capped the sentence for attempted sexual contact at five years and
the sentence for abuse or cruelty to a minor at seven-and-a-half years. It gave the court discretion
to make the sentences concurrent or consecutive. At the change of plea hearing, Judge Sabers
advised Berry of the charges to which he was pleading guilty and the State provided a factual basis
for the charges. Berry entered an Alford plea to attempted sexual contact with a child under age
sixteen and a guilty plea to abuse or cruelty to a minor.3 Judge Sabers accepted the pleas after
confirming that Berry understood that an Alford plea operates as a guilty plea. She sentenced
Berry to twelve-and-a-half years in prison.
Named after the Supreme Court's decision in North Carolina v. Alford, 400 U.S. 25 (1970), an
Alford plea permits a defendant to plead guilty while maintaining his innocence. Berry's amended
judgment and sentence state that he pleaded nolo contendere to attempted sexual contact with a
child under age 16. At the change-of-plea hearing, however, Berry said that he was entering an
Alford plea and maintained that he did not do anything "sexual" with K.M.B. Alford and nolo
contendere pleas are similar, but some courts distinguish them on the ground that an Alford plea
asserts innocence whereas a nolo contendere plea refuses to admit guilt. United States v.
Mancinas-Flores, 588 F.3d 677, 681 (9th Cir. 2009); United States v. Tunning, 69 F.3d 107, 110-
Ill (6th Cir. 1995).
Berry's amended judgment is unclear about the type of plea he entered to the charge of abuse or
cmelty to a minor. It says that he entered his "plea of nolo contendere to the charges in the
Information: COUNT 1 ATTEMPTED SEXUAL CONTACT WITH CHILD UNDER AGE 16
(SDCL 22-22-7 AND 22-4-1) AND GUILTY TO COUNT 2 ABUSE OR CRUELTY TO A
MINOR (SDCL 26-10-1)." At the change of plea hearing, Berry initially said he was entering an
Alford plea to the abuse or cruelty to a minor charge, but then admitted that he "smacked" K.M.B.
several times. Based on this admission, Judge Sabers appears to have accepted Berry's plea to
abuse or cruelty to a minor as a guilty plea.
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Berry appealed his conviction and sentence to the Supreme Court of South Dakota; his sole
argument was that there was an insufficient factual basis for his Alford plea to attempted sexual
contact with a child under age sixteen. The Supreme Court of South Dakota summarily affirmed
Berry's conviction in September 2018, finding his appeal "without merit."
Berry filed a petition for habeas corpus in state court in October 2018. See State CIV 18-
3398. He alleged that his defense attorney was ineffective by allowing him to enter an Alford
plea and by failing to consult with him about his direct appeal, failing to inform the court of the
State's "mistake" in the information, and failing to provide him with a copy of the information.
Berry also alleged that there was insufficient evidence to support his conviction for abuse or cmelty
to a minor between March 2013 and March 2015 as charged in the information; that Judge Sabers
erred by accepting his plea to abuse or cmelty to a minor without establishing a factual basis for
that offense; and that his rights were violated because he was convicted of two crimes for "one
incident which happened in Nov. 2016 and the other was alleged to have happened on Oct. 22nd
and October 29."
In March 2019, State Circuit Court Judge Douglas E. Hoffman issued an order dismissing
Berry's habeas petition as frivolous. Berry moved for a certificate of probable cause, but Judge
Hoffinan denied the motion on April 17,2019. Berry did not file a separate motion for a certificate
of probable cause with the Supreme Court of South Dakota within the twenty-day window allowed
by state law. See SDCL § 21-27-18.1 (explaining that when a circuit court judge refuses to issue
a certificate of probable cause, the petitioner may file a "separate motion for issuance of a
certificate of probable cause with the Supreme Court within twenty days of the entry of the circuit
judge's refusal").
4State CIV 18-3398 is the docket number assigned to Berry's October 2018 state habeas case.
3
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On August 8, 2019, State Circuit Court Judge Sandra H. Hanson issued an order in State
CIV 18-3398 denying Berry leave to file a second habeas petition. On August 15, 2019, Berry
filed a letter in State CIV 18-3398 citing to SDCL § 21-27-18.1 and stating that he wanted to file
an appeal to the Supreme Court of South Dakota concerning a certificate of probable cause. Berry
wrote that he had not received a copy of the April 17, 2019 order denying his motion for a
certificate of probable cause and that he had only learned of the denial when Judge Hanson
mentioned it in her August 8 order denying him leave to file a second habeas petition.
On August 15, 2019, Berry filed another habeas case in state court, this time claiming that
the Department of Corrections Central Records was applying his sentences in the incorrect order.
See State CIV 19-2547. Judge Hanson dismissed this petition in September 2019, finding Berry's
claims were beyond the scope of habeas review.
Berry filed his habeas petition before this Court on November 15,2019. Doc.1. He raised
four grounds for relief:
I. That his Alford plea to attempted sexual contact with a minor lacked a sufficient
factual basis.
II. That the State violated his rights under the Double Jeopardy Clause because he was
convicted "for two different crimes when only one criminal transaction was alleged
by the victim." Doc. 1 at 7.
III. That his trial counsel was ineffective by failing to give him the complaint and
information, failing to inform him of the factual basis of the charges to which he
pleaded guilty, failing to inform him of his right to appeal, failing to catch a mistake
in the information, failing to provide him with all of the discovery, and failing to
interview witnesses.
IV. That there was insufficient evidence to support his conviction for abuse or cmelty
to a minor during the timefi-ame alleged in the information.
Docs. 1,1-1.
The State moved to dismiss Berry's petition, arguing that his claims are procedurally
defaulted because he failed to file a timely motion for a certificate of probable cause with the
Supreme Court of South Dakota. Docs. 4, 5.
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II. Discussion
A. Exhaustion and Procedural Default
Section 2254 of Title 28 allows a state inmate to collaterally attack his conviction and
sentence as contrary to the United States Constitution, but the inmate first must exhaust through
available state courts his Constitution-based claims for relief. Under § 2254, a federal court
cannot grant a writ of habeas corpus to a "person in custody pursuant to the judgment of a State
court," unless the "applicant has exhausted the remedies available in the courts of the State," or
unless "there is an absence of available State corrective process" or "circumstances exist that
render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(l).
"[T]he state prisoner must give the state courts an opportunity to act on his claims before he
presents those claims to a federal court in a habeas petition." O'Sullivan v. Boerckel, 526 U.S.
838, 842 (1999). "Only if the state courts have had the first opportunity to hear the claim sought
to be vindicated in a federal habeas proceeding does it make sense to speak of the exhaustion of
state remedies." Picard v. Connor, 404 U.S. 270, 276 (1971). The exhaustion requirement
protects the state courts' role in enforcing federal law, allows state courts the first opportunity to
correct possible constitutional defects in state court convictions, and prevents the potentially
"unseemly" disruption of state judicial proceedings through premature federal court intervention.
Rose v. Lundv, 455 U.S. 509, 518 (1982) (quoting Darr^Burford, 339 U.S. 200, 204 (1950)).
These interests in comity and federalism also underlie the procedural default doctrine.
Davila v. Davis, 137 S. Ct. 2058, 2064 (2017). Procedural default occurs when a prisoner does
not properly exhaust his claims in state court and is now barred from doing so because of his
failure to follow the state's procedural rules. Abdullah v. Groose, 75 F.3d 408, 411 (8th Cir.
1996) (en banc); Wiegers v. Weber, 37 F. App'x 218, 219-20 (8th Cir. 2002) (per curiam). If the
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petitioner is barred from raising his claims because "untimeliness or some other state procedural
hurdle" prevents him from doing so, then he has technically exhausted his state court remedies as
there are no longer any such remedies available to him. Grass v. Reitz, 643 F.3d 579, 584 (8th
Cir. 2011); see also Woodford v. Neo, 548 U.S. 81, 92-93 (2006) ("In habeas, state-court
remedies are described as having been 'exhausted' when they are no longer available, regardless
of the reason for their unavailability."). Exhaustion in this sense, however, "does not
automatically entitle the habeas petitioner to litigate his ... claims in federal court." Woodford,
548 U.S. at 93. Rather, the petitioner's "procedural default may constitute an independent and
adequate state ground barring federal habeas relief absent a showing of either cause and prejudice
or actual innocence." Grass, 643 F.3d at 584 (cleaned up and internal citation omitted). The
procedural default doctrine thus "ensures that the States' interest in correcting their own mistakes
is respected in all federal habeas cases." Edwards v. Carpenter, 529 U.S. 446, 452-53 (2000)
(citation omitted). With this law in mind, this Court turns to the claims in Berry's federal habeas
petition.
B. Berry Exhausted Ground I by Raising it on Direct Appeal
Berry has exhausted Ground I, his claim that there was an insufficient factual basis to
support his Alford plea to attempted sexual contact with a child under age 16. Part of the
exhaustion inquiry asks whether the petitioner fairly presented the issue to the state courts in a
federal constitutional context. Satterv. Leaplev, 977 F.2d 1259,1262 (8th Cir. 1992). "To satisfy
exhaustion requirements, a habeas petitioner who has, on direct appeal, raised a claim that is
decided on its merits need not raise it again in a state post-conviction proceeding." 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,
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1179 (8th Cir. 1993). "The petitioner must refer to a specific federal constitutional right, a
particular constitutional provision, a federal constitutional case, or a state case raising a pertinent
federal constitutional issue." Id. (cleaned up and citation omitted). This does not, however,
require the petitioner to cite "book and verse on the federal constitution." Picard, 404 U.S. at 278
(citation omitted). The petitioner must simply make apparent the constitutional substance of the
claim. Satter, 977 F.2d at 1262.
Berry fairly presented Ground I of his petition in his direct appeal to the Supreme Court
of South Dakota; he cited North Carolina v. Alford. 400 U. S. 25 (I 970). and argued that his Alford
plea to attempted sexual contact with a child under age 16 must be set aside because it was not
supported by a "strong" factual basis. See Arringtonv. Minnesota, Civ. No. 19-1377 (MJD/BRT),
2020 WL 2841874, at *1 (D. Minn. Mar. 24, 2020) (concluding that habeas petitioner fairly
presented claim that his Alford plea lacked a sufficient factual basis by arguing in his state habeas
petition that his Alford plea was invalid because there was insufficient evidence upon which a
juror could convict), report and recommendation adopted, No. 19-1377 (MJD/BRT), 2020 WL
2840200 (June 1, 2020); Shepersky v. Wengler, Civil No. 09-2049 (PJS/SRN), 2010 WL
6367122,at *2,7 (D. Minn. Sept. 10, 2010) (finding that habeas petitioner fairly presented claim
that his Alford plea lacked a sufficient factual basis by citing North Carolina v. Alford to appellate
court and attacking the factual basis for his Alford plea), report and recommendation adopted, No.
09-CV-2049 (PJS/SRN), 2011 WL 1189099 (D. Minn. Mar. 28, 2011). The State's motion to
dismiss because of procedural default is denied as to Ground I of Berry's petition.
C. Grounds II, III, and IV Are Procedurally Defaulted
Berry did not raise Grounds II, III, or IV in his direct appeal. To properly exhaust these
claims, then, he needed to present them to the Supreme Court of South Dakota via a state habeas
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petition. See Ashker, 5 F.3d at 1179 ("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." ); Wiegers, 37 F. App'x at 219 (concluding that a petitioner who failed to timely
appeal the denial of his habeas petition had not given South Dakota "one full opportunity to
resolve any constitutional issue by invoking one complete round of South Dakota's established
appellate review process" (cleaned up and citation omitted)).
The State argues that Berry procedurally defaulted his claims because he failed to timely
seek discretionary review by the Supreme Court of South Dakota after Judge Hoffman dismissed
his habeas petition. A state habeas petitioner in South Dakota cannot appeal the dismissal of his
petition unless the circuit judge or a justice of the Supreme Court of South Dakota "issues a
certificate of probable cause that an appealable issue exists." SDCL § 21-27-18.1. Under § 21-
27-18.1, the petitioner has thirty days from the date of final judgment to seek a certificate of
probable cause from the circuit judge. Id. If the circuit judge refuses to issue a certificate of
probable cause, the petitioner may "file a separate motion for issuance of a certificate of probable
cause with the Supreme Court within twenty days of the entry of the circuit judge's refusal." Id.
State mles like § 21-27-18.1 will not bar a habeas claim unless they are "firmly
established, regularly followed, and readily ascertainable." White v. Bowersox, 206 P.3d 776,
780 (8th Cir. 2000); see also Sloan v. Delo, 54 F.3d 1371, 1379-80 (8th Cir. 1995) (explaining
that a state law is "adequate" to bar federal habeas review if the rule is clear, does not "thwart the
assertion of federal rights," and is firmly established and regularly followed (citation omitted)).
The Supreme Court of South Dakota regularly enforces § 21-27-18.1; it has dismissed untimely
motions for a certificate of probable cause, Hannon v. Weber, 638 N.W.2d 48, 50 (S.D. 2001)
(per curiam) (explaining that the court "dismisses motions for certificate of probable cause that
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are untimely filed" even when the motions "are filed only one day late"), and refused to consider
an issue because the petitioner, having been denied a certificate of probable cause on the issue by
the circuit judge, failed to "file a separate motion with" the court requesting a certificate, White
v. Weber, 768 N.W.2d 144, 149 (S.D. 2009) (holding that the court did have jurisdiction to
consider the issue). This Court previously has concluded that § 21-27-18.1's requirement that
state habeas petitioners file a timely motion for a certificate of probable cause with the Supreme
Court of South Dakota is an independent and adequate state law ground that bars federal review.
Thielsenv. Weber, No. Civ. 10-1029-RAL, 2012 WL 844704, at *3 (D.S.D. Mar. 12,2012); Two
Eagle v. Weber, No. CIV. 10-5035-JLV, 2011 WL 5914021, at *9-10 (D.S.D. Mar. 15, 2011)
(holding that state habeas petitioner's claims were procedurally defaulted because he failed to
request a certificate of probable cause from the Supreme Court of South Dakota), report and
recommendation adopted, No. CIV. 10-5035-JLV, 2011 WL 5914060 (D.S.D. Nov. 28,2011);
see also Wiegers, 37 F. App'x at 219-20 (concluding that prisoner procedurally defaulted his
claims by failing to timely appeal the circuit judge's denial of his habeas petition to the Supreme
Court of South Dakota).5
5Berry's situation differs from the situation in Graham v. Weber, No. CIV 13-4100, 2014 WL
878098 (D.S.D. Mar. 5, 2014), where this Court found the Supreme Court of South Dakota's
particular application of § 21-27-18.1 not to be a firmly established and regularly followed
procedural rule. Section 21 -27-18.1 states that "[a]ny party filing a motion with the Supreme Court
shall serve a copy of the motion upon the opposing party, who shall have ten days to respond."
The last sentence of § 21-27-18.1 then states "[s]ervice of either a motion for a certificate of
probable cause or of an appeal must be made upon both the attorney general and the appropriate
state's attorney when the motion is made or the appeal is taken by the party seeking the habeas
corpus relief." The Supreme Court of South Dakota in Graham dismissed the petitioner's timely
motion for a certificate of probable cause because the petitioner failed to simultaneously file and
serve the motion. Judge Lawrence L. Piersol held in Graham that this approach by the Supreme
Court of South Dakota was not firmly established or regularly followed because there were no
other cases dismissing a motion for a certificate of probable cause simply due to not being served
at the time of filing. Id at *3. This case is different from Graham because while § 21-27-18.1 is
somewhat confusing concerning when service must be made, its language is clear that motions for
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Berry did not file a separate motion for a certificate of probable cause with the Supreme
Court of South Dakota within twenty days of Judge Hoffman's refusal to issue a certificate. In
the August 15, 2019, letter Berry filed in CIV-18-3 398, however, he claimed that he had not
received a copy of the April 17, 2019 order denying his motion for a certificate of probable cause
and that he had only learned of the denial when Judge Hanson mentioned it in her August 8 order.
Berry referenced § 21-27-18.1 in the letter and wrote that he wished to file an appeal to the
Supreme Court of South Dakota concerning a certificate of probable cause.
Berry now argues that the August 15 letter constitutes a motion for a certificate of probable
cause filed with the Supreme Court of South Dakota. He appears to believe that the letter was
timely because he filed it ostensibly within twenty days of learning that his motion for a certificate
of probable cause was denied. Beny'^ argument ignores the plain language of § 21-27-18.1.
Again, that statute states that the petitioner must "file a separate motion for issuance of a
certificate of probable cause with the Supreme Court." § 21-27-18.1 (emphasis added). Berry
failed to comply with this requirement because he sent his August 15 letter to the state court clerk
rather than filing it with the Supreme Court of South Dakota. See Joyner v. Dooley, No.11-5047-
JLV, 2011 WL 8194280, at *12 n.l2 (D.S.D. Nov. 9,2011) (quoting § 21-27-18.1 and concluding
that "it would appear that filing one's request [for a certificate of probable cause] with the circuit
court is not effective under South Dakota law"), report and recommendation adopted as modified,
No. CIV. 11-5047-JLV, 2012 WL 2787154 (D.S.D. July 9, 2012). Because Berry never filed a
a certificate of probable cause must be filed with the Supreme Court of South Dakota. Moreover,
there have been cases from the Supreme Court of South Dakota dismissing motions for a certificate
of probable cause for being untimely as well as a case where the court refused to consider an issue
because the petitioner, having been denied a certificate of probable cause on the issue by the circuit
judge, failed to "file a separate motion with" the court requesting a certificate. White, 768 N.W.2d
at 149.
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motion for a certificate of probable cause with the Supreme Court of South Dakota and that court
would now find such a motion untimely, he has procedurally defaulted on the claims in his state
habeas petition. See Coleman v. Thompson, 501 U.S. 722, 735 n.l (1991) (explaining that
procedural default exists when the "petitioner failed to exhaust state court remedies and the to
court to which the petitioner would be required to present his claims in order to meet the
exhaustion requirement would now find the claims procedurally barred"). Berry's procedural
default bars this Court from considering the claims raised in Grounds II, III, and IV of his federal
habeas petition unless he can show either cause and prejudice or actual innocence. Grass, 643
F.3d at 584.
D. Berry Cannot Show Cause and Prejudice or Actual Innocence
To establish cause to excuse his procedural default, Berry must "show that some objective
factor external to the defense impeded [his] efforts to comply with the State's procedural rule."
Davila, 137 S. Ct. at 2065 (citation omitted). "A factor is external to the defense if it cannot fairly
be attributed to the prisoner." Id. (cleaned up and citation omitted). The record here suggests
that there are two possibilities for showing cause: a lack of counsel at the initial-review stage of
Berry's state habeas case and his alleged failure to receive notice of the April 17, 2019 order
denying his motion for a certificate of probable cause.
The Supreme Court in Martinez v. Ryan, 566 U.S. 1 (2012), recognized a narrow
exception to the general mle that ineffective assistance of counsel in state postconviction
proceedings does not qualify as cause to excuse a procedural default. Under this exception, courts
may find cause to excuse procedural default of a "substantial" claim of ineffective assistance of
counsel at trial when state law requires prisoners to raise such claims at the initial-review stage
of collateral proceedings and the "cause" consists of there being no counsel or "ineffective"
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counsel during this collateral proceeding. Trevino v. Thaler, 569 U.S. 413, 423 (2013). The
Martinez exception does not apply to errors that occur after "the first occasion the State allows a
prisoner to raise a claim of ineffective assistance at trial," including "appeals from initial-review
collateral proceedings . . . and petitions for discretionary review in a State's appellate courts."
Martinez, 566 U.S. at 16; see also Arnold v. Dormire, 675 F.3d 1082, 1087 (8th Cir. 2012)
(holding that counsel's failure to appeal the denial of a prisoner's state habeas petition did not
constitute cause to excuse the prisoner's procedural default). Here, Berry's claims were properly
raised and considered during the first available collateral review proceeding in state court. Berry
did not default on his claims until after this initial review when he failed to seek a certificate of
probable cause from the Supreme Court of South Dakota. As such, Berry's lack of counsel during
the initial-review collateral proceeding cannot serve as cause to excuse his default. Miller v.
Young, 4:18-CV-04137-KES, 2019 WL 3941256, at *5 (D.S.D. Aug. 21, 2019) (holding that
habeas counsel's failure to pursue a certificate ofprobable cause from the Supreme Court of South
Dakota did not excuse the petitioner's procedural default).
The other way Berry could potentially establish cause is if the state court system failed to
notify him of the order denying his motion for a certificate of probable cause. Mistakes by courts
or the clerk's office may constitute cause to excuse a petitioner's procedural default. See Hartman
v. Baglev, 492 F.3d 347, 358 (6th Cir. 2007) (concluding that petitioner established cause for
failure to timely appeal the denial of his state habeas petition where docket showed that copy of
denial was sent only to petitioner, not his attorney, and where affidavit showed that no legal mail
for the petitioner was received by the prison); Johnson v. Champion, 288 F.3d 1215, 1227-28
(10th Cir. 2002) (finding cause to excuse a procedural default where the clerk's failure to provide
the petitioner with a certified court order made compliance with the state's procedural rules
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"practically impossible"). As noted above, Berry claims that he never received a copy of the
April 17, 2019 order denying his motion for a certificate of probable cause and that he only
learned of the denial when Judge Hanson mentioned it in her August 8 order. Assuming this is
true, Berry could not have complied with § 21-17-18.1 by filing a motion for a certificate of
probable cause with the Supreme Court of South Dakota within twenty days of the April 17, 2019
order.
But even if cause to excuse Berry's procedural default exists, he must still demonstrate
prejudice. To establish prejudice, Berry must show "not merely that the errors at his trial created
a possibility of prejudice, but that they worked to his actual and substantial disadvantage,
infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S.
152, 170 (1982); Ivy v. Caspari, 173 F.3d 1136, 1141 (8th Cir. 1999) (stating same standard).
Berry cannot meet this standard for any of his remaining claims.
Ground II of Berry's habeas petition alleges that the State violated his rights under the
Double Jeopardy Clause because he was convicted and sentenced "for two different crimes when
only one criminal transaction was alleged by the victim." Doc. 1 at 7. Berry's argument appears
to be based on some discrepancies in the charging documents concerning the dates on which he
committed abuse or cmelty to a minor. The State filed a complaint and an information against
Berry on the day he pleaded guilty. The complaint alleged that Berry committed abuse or cruelty
to a minor on or between March 16,2013, and November 4,2016. The information listed different
dates for this offense, alleging that it occurred on or between March 16, 2013, and March 15,
2015. At the change of plea hearing, Judge Sabers read the dates alleged in the complaint—on
or between March 16,2013, and November 4,2016—when describing the charge to Ben-y. Berry
initially said he wanted to enter an Alford plea to both the attempted sexual contact charge and
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the abuse or cmelty to a minor charge. The prosecutor then read the facts to support the plea,
explaining among other things that K.M.B. had reported that Berry had hit her in the face on
November 4, 2016, and had sexually abused her for the past five years. Berry's attorney replied
that Berry would admit to striking K.M.B. with an open hand if "the Court would want to accept
that as a factual basis for child abuse." Berry then admitted that he "smacked" KL.M.B. "several
times." Judge Sabers said she would accept Berry's plea to abuse or cmelty to a minor based on
the record and his admission to "whacking" K.M.B.
Berry confusingly claims that his conviction for cmelty or abuse to a minor violates the
Double Jeopardy Clause because he pleaded guilty to "two different statue [sic] violation[s] when
only one criminal transaction was alleged by the victim." Doc. 1 at 7. Berry cannot show actual
prejudice from an inability to raise this claim. The Double Jeopardy Clause protects defendants
from "multiple punishments for the same criminal offense." United States v. Bennett, 44 F.3d
1364, 1368 (8th Cir. 1995). Attempted sexual contact with a child under age 16 and abuse or
cmelty to a minor are not the same criminal offense; each requires proof of a fact which the other
does not. See SDCL §§ 22-22-7, 26-10-1. And while Berry seems to contend that he was
punished twice for the same conduct, that is not correct. The transcript of the change of plea
hearing shows that Berry's conduct between March 2013 and March 2015 formed the basis for
the attempted sexual contact with a child under age 16 charge and that Berry's striking K.M.B in
November 2016 provided the basis for the abuse or cruelty to a minor charge. Berry's convictions
and sentences for these two crimes did not violate the Double Jeopardy Clause.
Ground IV of Berry's habeas petition also relates to his conviction for abuse or cmelty to
a minor. Berry argues that the evidence does not support that he committed this crime during the
time frame alleged in the information. Again, the information alleged that Berry engaged in abuse
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or cmelty to a minor on or between March 16, 2013, and March 15, 2015. Berry cannot show
actual prejudice from his inability to raise this claim. The date of the offense is not an essential
element the State was required to prove to convict Berry of abuse or cmelty to a minor,6 see SDCL
§ 26-10-1, and the record from the change of plea hearing, including Berry's admission that he
"smacked" KMB "several times," provides an adequate factual basis for Berry's guilty plea.
Moreover, Judge Sabers described this crime as occurring on or between March 16, 2013, and
November 4, 2016, so Berry had notice of this timeframe before he pleaded guilty. Courts faced
with similar facts have consistently declined to find a constitutional violation. See United States
v. Moore, 639 F.3d 443, 447 (8th Cir. 2011) ("When the date of the offense is not an element of
the charge, we have held on many occasions that a variance between the indictment date and the
proof at trial is not fatal so long as the acts charged were committed within the statute of
limitations period, and prior to the return date of the indictment." (citation omitted)). In any event,
Berry pleaded guilty to abuse or cmelty to a minor, so there is no federal constitutional
requirement that this plea have a factual basis. Wilson v. Missouri, No. 4:18 CV 612 (JMB),
2019 WL 3304712, at *3 (E.D. Mo. July 23, 2019) ("Unless there is a claim of innocence, as in
an Alford plea, there is not a federal constitutional requirement that a guilty plea have a factual
basis.").
6Berry argues that the date he abused K.M.B. is important because she was "over the age of 16"
by November 2016. Doc. 1-1 at 1. He apparently believes that he could not be convicted of
violating SDCL § 26-10-1 ifK.M.B. was older than sixteen when he abused her. But that is not
correct. A "minor" for purposes of § 26-10-1 is any person "under eighteen years of age." SDCL
§ 26-1-1. K.M.B. was born in March of 1999 and was still under eighteen years of age when Berry
abused her in November 2016.
7Beny also admits to "smack[ing]" K.M.B. "several times" on Nov. 1, 2016, in his filings before
this Court. Doc. 1-1 ati.
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Ground III of Berry's habeas petition alleges that his trial counsel was ineffective by
failing to give him the complaint and information, failing to inform him of the factual basis of the
charges to which he was pleading guilty, failing to inform him of his right to appeal, failing to
catch a mistake in the information, failing to provide him with all of the discovery, and failing to
interview witnesses. Berry cannot show that any of the failures alleged in Ground III worked to
his actual and substantial disadvantage.
Berry's first two allegations—that counsel failed to give him the complaint and
information and failed to inform him of the factual basis—suffer from at least two problems.
First, Berry told Judge Sabers that he was satisfied with the advice and assistance of his attorney,
and Berry's attorney told Judge Sabers that he had advised Berry of the nature of the charges and
that he was satisfied that Berry understood them. As the Supreme Court explained, "the
representations of the defendant, his lawyer, and the prosecutor [at a change of plea hearing], as
well as any findings made by the judge accepting the plea, constitute a formidable barrier in any
subsequent collateral proceedings." Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). Second,
Judge Sabers read the charges aloud to Berry, Berry said he did not have any questions about
what she told him,8 and the factual basis for both charges was placed on the record. Thus, Berry
did not suffer any prejudice even if his lawyer failed to provide him with the information and
complaint and to infonn him of the factual basis. SeeAzizv. Litscher, 27F. App'x611, 613 (7th
Cir. 2001) ("When a trial court explains the elements of the charge and the consequences of
pleading guilty and the defendant acknowledges that he understands, the defendant has suffered
no prejudice as a result of deficient performance by counsel in connection with the guilty plea,").
8 Judge Sabers also found that Berry understood the nature of the charges against him.
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Berry's next allegation—that his attorney failed to advise him of his right to appeal—is a
nonstarter. Berry did appeal, so his attorney's alleged failure to inform him of this right did not
cause him any prejudice.
Berry also alleges that his attorney provided ineffective assistance by failing to catch a
"mistake" in the information. This Court assumes that Berry is referring to the information's
allegation that the abuse or cmelty to a minor occurred on or between March 16,2013, and March
15, 2015. Berry appears to argue that his attorney's failure to catch this mistake led to his rights
under the Double Jeopardy Clause being violated. This alleged mistake did not cause Berry any
prejudice. As explained already, Berry's convictions and sentences did not violate the Double
Jeopardy Clause. And the outcome would have been no different if trial counsel had raised the
mistake in the information; Judge Sabers simply would have corrected the erroneous date range
and the change of plea hearing would have continued. See State v. Anderson, 546 N.W.2d 395,
398-^tOO (S.D. 1996) (explaining that a trial court can amend an indictment as to matters of form
under both state and federal law).
Berry's last allegations are that his attorney provided ineffective assistance by failing to
provide him with all of the discovery and failing to interview witnesses. Berry has not alleged
any facts that would allow for the plausible inference that his attorney's failure to do these things
worked to his actual and substantial disadvantage. Indeed, Berry does not give the names of any
witness his attorney failed to interview or describe what any such witness would have said. Nor
does he explain what discovery he didn't receive or how receiving this discovery would have
changed his decision to plead guilty. Berry's conclusory allegations are not enough to show
prejudice.
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The only other way this Court can hear Berry's procedurally defaulted claims is if he
shows actual innocence. Berry claims that he is innocent of the attempted sexual contact charge,
but that is the extent of it. Bare claims like Berry's are not enough to show actual innocence. See
Weeks v. Bowersox, 119 F.3d 1342, 1352-53 (8th Cir. 1997) (en banc) (holding that "mere
allegations" of actual innocence are not sufficient to invoke the actual innocence gateway to
habeas review ofprocedurally defaulted claims).
III. Conclusion
For the reasons explained above, it is hereby
ORDERED that the Respondents' Motion to Dismiss Petitioner's Application for Writ of
Habeas Corpus, Doc. 4, is denied as to Ground I of Berry's petition. The Respondents' motion
to dismiss is granted as to all other claims in Berry's petition. It is further
ORDERED that no certificate of appealability shall issue. It is further
ORDERED that the Respondents shall have 30 days within which to answer Berry's
petition.
DATED this 3^ day of November, 2020.
BY THE COURT:
<:^^A/2'
ROBERTO A. LAN'GE
CHIEF JUDGE
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