Banghart v. Clark et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
MARTY JOE BANGHART,
Petitioner,
vs.
DOUG CLARK1, ACTING WARDEN;
and the ATTORNEY GENERAL OF THE
STATE OF SOUTH DAKOTA,
Respondent.
4:21-CV-04066-KES
REPORT AND RECOMMENDATION
INTRODUCTION
This matter is before the court on the pro se petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254 of Marty Joe Banghart, a person
incarcerated at the South Dakota State Penitentiary. See Docket No. 1. Now
pending are petitioner’s motion for summary judgment and respondents’
motion to dismiss Mr. Banghart’s petition without holding an evidentiary
hearing. See Docket Nos. 5 & 9. Mr. Banghart opposes the motion to dismiss,
Docket Nos. 17 & 18, and respondents oppose the motion for summary
judgment, Docket No. 10. This matter was referred to this magistrate judge for
a recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and the
1 Mr. Banghart originally named Darin Young, former warden of the South
Dakota State Penitentiary, as a respondent. Mr. Young has been separated
from that office. According to Federal Rule of Civil Procedure 25(d), the court
substitutes Mr. Clark in his place.
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October 16, 2014, standing order of the Honorable Karen E. Schreier, United
States District Judge.
FACTS
A. Underlying Criminal Case and Conviction
On November 17, 2014, Mr. Banghart was indicted by a Lincoln County,
South Dakota, grand jury on six counts: two counts of first-degree rape, —
domestic, in violation of SDCL § 22-22-1(1) and SDCL § 25-10-1; one count of
fourth-degree rapedomestic, in violation of SDCL § 22-22-1(5) and SDCL § 25-
10-1; and three counts of sexual contact with a child under the age of
16,domestic, in violation of SDCL § 22-22-7 and SDCL § 25-10-1. See Docket
No. 10-1, p. 1.
A jury trial commenced on October 30, 2015. See State v. Banghart,
41CRI14-000648 at p. 586 (Vol. II Jury Trial Transcript (“JT”) at p. 1); Docket
No. 10-1, p. 2. During trial, the state offered evidence from Anna Eidem, a
counselor at Tea Area Schools. Id. at p. 610 (Vol. II JT at p. 25). Ms. Eidem
testified that in January 2013, S.B. (“victim”) disclosed to her that she was
being sexually abused by her father, Mr. Banghart. Id. at pp. 612, 617 (Vol. II
JT at pp. 27, 32). Additionally, the state offered evidence from an interview
Mr. Banghart had with South Dakota Division of Criminal Investigation (“DCI”)
Special Agent Jessica Page. Id. at p. 621 (Vol. II JT at p. 36). During that
recorded interview, Mr. Banghart admitted to touching the victim’s vagina. Id.
at p. 630 (Vol. II JT at p. 45).
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The victim testified that the first sexual contact from Mr. Banghart
occurred in October 2009, when she was in the sixth grade. Id. at p. 660
(Vol. II JT at p. 75). The victim testified that this occurred at least once a
month until January 2013. Id. at p. 663 (Vol. II JT at p. 78). During the time
of sexual abuse, the victim testified that Mr. Banghart shaved her pubic area.
Id. at p. 667 (Vol. II JT at p. 82). The victim testified that Mr. Banghart said he
had to do it, otherwise he would bring the victim to the doctor to get shots; the
victim testified that she was terrified of needles so she complied. Id. at p. 669
(Vol. II JT at p. 84).
On November 3, 2015, the jury returned a verdict of guilty on count 1,
first-degree rape,domestic. State v. Banghart, 41CRI14-000648 at pp. 137-39;
Docket No. 10-1, p. 2. A sentencing hearing was held on January 15, 2016, at
which time the Honorable Jon Sogn, Second Judicial Circuit Court Judge,
sentenced Mr. Banghart to 25 years’ imprisonment in the South Dakota State
Penitentiary, with 10 years suspended upon conditions to be determined by the
Board of Pardons and Parole, with credit for 73 days previously served in jail.
Docket No. 10-1, p. 3.
B. State Procedural History
Mr. Banghart is currently in the custody of the South Dakota
Department of Corrections pursuant to a judgment and sentence entered by
the Honorable Jon Sogn in South Dakota state court on January 28, 2016.
See Docket No. 10-1. During his trial, Mr. Banghart was represented by two
attorneys, Paul Henry and Cynthia Berreau. Docket No. 1, p. 3.
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Mr. Banghart appealed his conviction by filing a Notice of Appeal with the
Supreme Court of South Dakota on February 11, 2016. See Docket No. 10-2.
However, on August 11, 2016, Mr. Banghart filed a Motion to Dismiss Appeal
and an Affidavit of Appeallant, stating, “no issues exist that could have the
prospect of being successfully pursued on direct appeal”. See Docket Nos. 10-
3, 10-4. The same day, the Supreme Court of South Dakota then entered an
order dismissing Mr. Banghart’s appeal. See Docket No. 10-5.
While Mr. Banghart did not seek a writ of certiorari with the United
States Supreme Court, Mr. Banghart, represented by attorney Steven R.
Binger, filed an Application for Writ of Habeas Corpus in state court on
February 23, 2017. Banghart v. Young, 41CIV17-000100 (2d Jud. Cir.); See
Docket No. 10-6. In his petition, Mr. Banghart claimed that his trial counsel,
provided ineffective assistance of counsel in violation of the Fourth and Sixth
Amendments. Id. Mr. Banghart alleged that trial counsel’s performance was
deficient because they:
1. Failed to object to inadmissible testimony offered, or, in the
alternative, failed to request any form of cautionary or limiting
instruction regaring an incident wherein petitioner shaved the victim’s
pubic area with a razor;
2. Failed to object, permitted and solicited the opinion of the state’s chief
investigator that the testimony of the alleged victim was true, and that
she believed and “knew” that the defendant was guilty of the offense;
3. Failed to object to testimony presented by an expert witness called by
the state, and failed to consult with or present testimony from an
expert to counter or rebut said testimony;
4. Failed to conduct a proper investigation of facts that would have
demonstrated that the claims of the alleged victims were false.
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Docket No. 10-6, pp. 3-5. In response, Darin Young, former warden of the
South Dakota State Penitentiary, filed a Return to Provisional Writ of Habeas
Corpus on March 16, 2017, denying all of Mr. Banghart’s claims that he
received ineffective assistance of counsel. See Docket No. 10-8.
More than two years later, Mr. Banghart filed an Amended Application
for Writ of Habeas Corpus on August 26, 2019. See Docket No. 10-7. The
amended application raised the same four claims of ineffective assistance of
counsel as the original application, along with some additional language for
claim three. Mr. Banghart’s amended claim three stated:
Counsel failed to object to testimony presented by an expert witness
called by the State, and failed to consult with or present testimony from
an expert to counter or rebut said testimony. Defense counsel further
failed to present expert testimony showing that the proper procedures for
conducting a forensic interview of the alleged child victim were not
followed, and that the investigators’ use of the alleged child victim in
attempting to elicit incriminating statements from the petitioner served to
improperly influence and reinforce the memory of a child witness.
Docket No. 10-7, p. 5.
The Honorable Sandra H. Hanson, Second Judicial Circuit Court Judge,
held evidentiary hearings on August 2, 2019, and February 14, 2020. Docket
No. 10-9, p. 1. Following the hearings, Judge Hanson issued a memorandum
opinion denying habeas relief. Judge Hanson indicated in her opinion that
Mr. Banghart only advanced the first two of his four claims of ineffective
assistance of counsel at the evidentiary hearing and in post-hearing briefs: the
alleged failures of trial counsel to (i) object to testimony by the state’s expert or
consult with or present a defense expert witness and (ii) object to evidence
regarding Mr. Banghart shaving the victim’s pubic area. Docket No. 10-9.
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Thus, Judge Hanson found that, while Mr. Banghart raised the other two
issues in his petition, “it appears he has abandoned them because he did not
address them at the evidentiary hearing or in his post-hearing briefs.
No evidence was provided to establish ineffective assistance of counsel with
respect to these claims. Acorrdingly, the Court denies habeas relief with
respect to them.” Docket No. 10-9, pp. 16-17.
Judge Hanson entered an order dismissing the case and separately filed
written findings of fact and conclusions of law on July 21, 2020. See Docket
Nos. 10-10, 10-11. First, Judge Hanson held that Mr. Banghart failed to show
that his trial counsel’s performance was constitutionally deficient for failing to
object to the admission of evidence regarding the shaving incident with the
victim or that their trial strategy was deficient because, even if they had
objected, Mr. Banghart failed to show the evidence was inadmissible in light of
SDCL §§ 19-19-801(d)(2), 19-19-401, 19-19-402, and 19-19-403. Docket
No. 10-10, pp. 9-10. Also, Judge Hanson held that Mr. Banghart failed to meet
his burden of showing he was prejudiced by any action or inaction of trial
counsels’ strategy relating to expert witnesses. Id. Ultimately, Judge Hanson
concluded that Mr. Banghart failed to satisfy the standards set by Strickland v.
Washington, 466 U.S. 668 (1984), to prove he was denied his constitutional
right to counsel during the underlying criminal case, and, thus, his claim for
habeas relief was denied. Docket No. 10-10, p. 11.
On August 17, 2020, Mr. Banghart filed a Motion for Certificate of
Probable Cause seeking permission to appeal to the Supreme Court of South
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Dakota. See Docket No. 10-12. In his motion, Mr. Banghart requested to
appeal the issues of ineffective assistance of counsel for:
1. Failure to consult with or call a rebuttal expert witness, which
manifested itself as follows:
a. Failure to challenge the credentials of the state’s witness;
b. Failure to present expert testimony showing that the theories
behind the state’s expert’s testimony were flawed and discredited
by established scientific research;
c. Failure to present expert testimony showing that the lack of a
forensic interview tainted the investigation and lessened the
reliability of claims made by the state’s witness;
d. Failure to present expert testimony showing that the late and
inconsistent statements of the victim were suggestive of a motive to
falsify.
2. Failure to object to the razor/shaving evidence
Docket No. 10-12, p. 3. Judge Hanson denied Mr. Banghart’s motion on
August 19, 2020. See Docket No. 10-13.
On September 8, 2020, Mr. Banghart filed another Certificate of Probable
Cause with the Supreme Court of South Dakota. See Docket No. 10-14.
Mr. Banghart sought permission to appeal the same issues of ineffective
assistance of counsel that he had requested in his previously filed Certificate of
Probable Cause. Compare Docket No. 10-12, p. 3, with Docket No. 10-14, p. 3.
The Supreme Court of South Dakota denied Mr. Banghart’s request on
February 26, 2021. See Docket No. 10-15.
C. Federal Habeas Petition
On April 15, 2021, Mr. Banghart filed his Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 with this court. See Docket No. 1. In his
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petition, Mr. Banghart raises two grounds alleging ineffective assistance of
counsel pursuant to the Sixth and Fourteenth Amendments to the United
States Constitution. Docket No. 1, p. 4, 6. Within both grounds, Mr. Banghart
alleges the same four claims of ineffective assistance of counsel:
1. Trial counsel’s performance was deficient in that they failed to object
to inadmissible testimony offered, or, in the alternative, failed to
request any form of cautionary or limiting instruction regarding an
incident wherein Mr. Banghart shaved the victims pubic area with a
razor;
2. Trial counsel’s performance was deficient in that they failed to object,
permitted and solicited the opinion of the state’s chief investigator
that the testimony of the alleged victim was true, and that she
believed and “knew” that Mr. Banghart was guilty of the offense;
3. Defense counsel failed to object to testimony presented by an expert
witness called by the State and failed to consult with or present
testimony from an expert to counter or rebut said testimony. Defense
counsel further failed to present expert testimony showing that the
proper procedures for conducting a forensic interview of the allged
child victim were not followed and that the investigator’s use of the
victim in attempting to elicit incriminating statements from
Mr. Banghart served to improperly influence and reinforce the
memory of a child witness;
4. Defense counsel failed to properly investigate facts that would have
demonstrated that the victim’s claims were false.
Docket No. 1, p. 5-6. On April 15, 2021, after preliminary review of the
petition, this court entered an Order for Service requiring the respondents to
file and serve a response to the petition within thirty days after receipt of this
order. See Docket No. 4.
After not receiving a response from the respondents, Mr. Banghart filed a
Motion for Summary Judgment on June 28, 2021. See Docket No. 5.
Respondents argue that on or about June 30, 2021, they received the
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summary judgment motion but were unaware of Mr. Banghart’s petition at that
time. Docket No. 10, p. 2. Respondents contacted the District of South Dakota
clerk’s office2 and discovered that a technical defect caused respondents to not
receive the April 15 order. Id. Eventually, respondents filed their motion to
Dismiss on July 19, 2021. See Docket No. 9. This matter is now fully briefed
and ripe for decision.
DISCUSSION
A. Petitioner’s Motion for Summary Judgment
Mr. Banghart filed a motion for summary judgment with this court on
June 28, 2021. See Docket No. 5. Under Rule 56(a) of the Federal Rules of
Civil Procedure, summary judgment is appropriate where the moving party
“shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A court
should grant summary judgment when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c).
Generally, the court must view the facts, and inferences from those facts,
in the light most favorable to the nonmoving party. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (citing United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); Helton v. Southland Racing
2 Respondents contacted Summer Wakefield, United States District Court for
the District of South Dakota Supervisory Deputy Clerk, by phone.
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Corp., 600 F.3d 954, 957 (8th Cir. 2010) (per curiam). Summary judgment will
not lie if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66-67 (8th Cir. 1994).
The burden is placed on the moving party to establish both the absence
of any genuine issue of material fact and that the moving party is entitled to
judgment as a matter of law. FED. R. CIV. P. 56(a). Once the movant has met
its burden, the nonmoving party may not simply rest on the allegations in the
pleadings, but must set forth specific facts, by affidavit or other evidence,
showing that a genuine issue of material fact exists. Anderson, 477 U.S. at
256; FED. R. CIV. P. 56(e) (each party must properly support its own assertions
of fact and properly address the opposing party’s assertions of fact, as required
by Rule 56(c)).
The underlying substantive law identifies which facts are “material” for
purposes of a motion for summary judgment. Anderson, 477 U.S. at 248.
“Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment. Factual
disputes that are irrelevant or unnecessary will not be counted.” Id. (citing 10A
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure § 2725, at 93-95 (3d ed. 1983)). “[T]he mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact.” Id. at 247-48.
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Essentially, the availability of summary judgment turns on whether a
proper jury question is presented: “The inquiry performed is the threshold
inquiry of determining whether there is the need for a trial—whether, in other
words, there are any genuine factual issues that properly can be resolved only
by a finder of fact because they may reasonably be resolved in favor of either
party.” Id. at 250.
Here, Mr. Barghart argues he is entitled to summary judgment due to
“Respondents failure to abide by the Courts Order in any manner for ‘Months’
after service of order lends to the ‘Fact’ that the Respondent has no ‘Genuine
Dispute’ to any ‘Material Fact’ . . . .” See Docket No. 6, p. 2. The facts allged in
Mr. Banghart’s Local Rule 56.1 statement of materials facts relate only to
respondents’ failure to timely respond. Docket No. 7. Mr. Banghart’s sole
contention in favor of summary judgment is that respondents’ response to his
habeas petition is untimely.
Regardless of whether respondents’ response was timely, Mr. Banghart
has not met his burden of establishing there are no genuine disputes of
material fact. See FED. R. CIV. P. 56(a). The party moving for summary
judgment bears the initial responsibility of informing the district court of the
basis of its motion and identifying the portions of the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits,
if any, that demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Grp. Health Plan, Inc. v.
Philip Morris USA, Inc., 344 F.3d 753, 763 (8th Cir. 2003). Mr. Banghart has
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not directed the court to the portions of the record that demonstrate the
absence of a genuine issue of material fact related to his claims of ineffective
assistance of counsel.
Alleging that respondents’ response was untimely is not enough for
Mr. Banghart to meet his burden under Rule 56; he was required to inform the
court how the record establishes the absence of genuine issues of material fact
related to the claims in his § 2255 petition. This he did not do. Accordingly,
Mr. Banghart’s motion for summary judgment should be denied, and the court
moves on to respondents’ motion to dismiss.
B. Scope of a § 2254 Petition
A state prisoner who believes he is incarcerated in violation of the
Constitution or laws of the United States may file a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. The Anti-Terrorism and Effective Death Penalty
Act (“AEDPA”) constrains federal courts to exercise only a “limited and
deferential review of underlying state court decisions.” Osborne v. Purkett, 411
F.3d 911, 914 (8th Cir. 2005) (quoting Lomholt v. Iowa, 327 F.3d 748, 751 (8th
Cir. 2003)). A federal court may not grant a writ of habeas corpus unless the
state court’s adjudication of a claim “resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly established Federal law.”
28 U.S.C. § 2254(d)(1). A state court decision is “contrary to” clearly
established federal law if it “applies a rule that contradicts the governing law
set forth in [Supreme Court] cases” or if it “confronts a set of facts that are
materially indistinguishable from a decision of th[e] Court and nevertheless
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arrives at a result different from [the Court’s] precedent.” Williams v. Taylor,
529 U.S. 362, 405-06 (2000) (O’Connor, J., concurring). A federal habeas
court may not issue the writ merely because it concludes the state court
applied the clearly established federal law erroneously or incorrectly. Id. at
411. “Rather, that application must also be unreasonable.” Id. (emphasis
added). See also Finch v. Payne, 983 F.3d 973, 979 (8th Cir. 2020).
The state court’s factual findings are presumed to be correct, and a
federal habeas court may not disregard the presumption unless specific
statutory exceptions are met. Thatsaphone v. Weber, 137 F.3d 1041, 1046
(8th Cir. 1998); 28 U.S.C. § 2254(e). A federal habeas court must “more than
simply disagree with the state court before rejecting its factual determinations.
Instead, it must conclude that the state court’s findings lacked even fair
support in the record.” Marshall v. Lonberger, 459 U.S. 422, 432 (1983)
(quotation omitted); see also Thatsaphone, 137 F.3d at 1046.
C. Mr. Banghart’s § 2254 Petition Is Timely Under the AEDPA Statute of
Limitations
AEDPA contains a one-year statute of limitations. Specifically, 28 U.S.C.
§ 2244(d) provides in relevant part:
(d) (1) A 1-year period of limitation shall apply to an application
for a writ of habeas corpus by a person in custody pursuant
to the judgment of a State court. The limitation period shall
run from the latest of:
(A) the date on which the judgment became final by
the conclusion of direct review or the expiration of the
time for seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of the
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Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State
action;
(C) the date on which the constitutional right asserted
was initially recognized by the Supreme Court, if the
right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral
review; or
(D) the date on which the factual predicate of the claim
or claims presented could have been discovered through
the exercise of due diligence.
(2) The time during which a properly filed application for
State post-conviction or other collateral review with respect to
the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this
subsection.
See 28 U.S.C. § 2244(d)(1) and (2).
A judgment or state conviction is final, for purposes of commencing the
statute of limitation period, at “either (i) the conclusion of all direct criminal
appeals in the state system, followed by either the completion or denial of
certiorari proceedings before the United States Supreme Court; or (ii) if
certiorari was not sought, then by the conclusion of all direct criminal appeals
in the state system followed by the expiration of the time allotted for filing a
petition for the writ.” Smith v. Bowersox, 159 F.3d 345, 348 (8th Cir. 1998).
The time allotted for filing a petition for writ of certiorari with the Supreme
Court is ninety days. Jihad v. Hvass, 267 F.3d 803, 804 (8th Cir. 2001). If a
petitioner does not timely seek an appeal of his judgment to the state’s highest
court, the judgment becomes final when his time for seeking review with the
state’s highest court expired. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012).
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The limitations period for § 2254 petitions is subject to statutory tolling.
See 28 U.S.C. § 2244(d)(2). This one-year statute of limitation period is tolled,
or does not include, the time during which a properly filed application for state
post-conviction relief or other collateral review is pending in state court.
Faulks v. Weber, 459 F.3d 871, 873 (8th Cir. 2006); 28 U.S.C. § 2244(d)(2).
The phrase “post-conviction or other collateral review” in § 2254’s tolling
provision encompasses the “diverse terminology that different States employ to
represent the different forms of collateral review that are available after a
conviction.” Duncan v. Walker, 533 U.S. 167, 177 (2001). Thus, § 2254’s
tolling provision “applies to all types of state collateral review available after a
conviction.” Id.
State collateral or post-conviction proceedings “are ‘pending’ for the
period between the trial court’s denial of the [post-conviction relief] and the
timely filing of an appeal from it.” Maghee v. Ault, 410 F.3d 473, 475 (8th Cir.
2005) (citing Peterson v. Gammon, 200 F.3d 1202, 1203 (8th Cir. 2000)); see
also Johnson v. Kemna, 451 F.3d 938, 939 (8th Cir. 2006) (an application for
state post-conviction review is pending until a mandate is issued).
However, state proceedings are not pending for the ninety-day period
“following the final denial of state post-conviction relief, the period during
which an unsuccessful state court petitioner may seek a writ of certiorari from
the United States Supreme Court.” Jihad, 267 F.3d at 805. Additionally,
“[s]tate proceedings are not pending during the time between the end of direct
review and the date an application for state [post-conviction relief] is filed.”
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Maghee, 410 F.3d at 475 (citing Painter v. Iowa, 247 F.3d 1255, 1256 (8th Cir.
2001)). In short, the one-year statute of limitations begins to run after the
state conviction is final, is tolled while state habeas proceedings are pending,
and then begins running again when state habeas proceedings become final.
Curtiss v. Mount Pleasant Corr. Facility, 338 F.3d 851, 853 (8th Cir. 2003).
Applying these principles to Mr. Banghart’s case, his federal habeas
petition is timely under the one-year statute of limitations. Mr. Banghart’s
judgment of conviction was filed on January 28, 2016. He filed a direct appeal
but later voluntarily dismissed it. The South Dakota Supreme Court entered
its order dismissing the appeal on August 11, 2016. Therefore, assuming
without so holding, Mr. Banghart’s conviction would have become final ninety
days later, on November 9, 2016.3 The AEDPA limitations period ran from the
next day, November 10, 2016, to February 23, 2017, when Mr. Banghart
initiated his state-court habeas action—a total of 133 days. The AEDPA
3 The Eighth Circuit has not addressed the issue of the date a conviction
becomes final when a direct appeal is voluntarily dismissed. The court
assumes, without so holding, that under these facts Mr. Banghart is entitled to
tolling for the ninety-day period during which he could have, but did not,
petition for certiorari to the United States Supreme Court. See Dumarce v.
Weber, 4:16-CV-04034-KES, 2016 WL 4249780, at *3 n.3 (D.S.D. July 15,
2016), report and recommendation adopted, 2016 WL 425054 (D.S.D. Aug. 10,
2016), denying cert. of appealability, 2016 WL 9526512 (8th Cir. Dec. 12,
2016). Accord Chapman v. McNeill, No. 3:08cv5/LAC/EMT, 2008 WL
2225659, at *3 (N.D. Fla. May 28, 2008) (concluding a state conviction
becomes final, for AEDPA purposes, ninety days after the state appellate court
grants a motion for voluntary dismissal of the appeal). But see Paiz v. Hoshino,
No. CV 12-5770-VAP (SP), 2013 WL 1935468, at *2 (C.D. Cal. Apr. 2, 2013)
(state prisoner’s conviction became final when appellate court granted request
to voluntarily dismiss direct appeal)
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limitations period was tolled while his state habeas action was pending—from
February 23, 2017, to February 26, 2021, when the South Dakota Supreme
Court denied Mr. Banghart’s motion for a certificate of probable cause.
Therefore, by filing this federal habeas petition on April 15, 2021, Mr. Banghart
still had 184 days left of the one-year statute of limitations.4 Accordingly,
Mr. Banghart’s petition is timely under AEDPA.
D. Rule 12(b)(6) Standard
Respondents’ motion to dismiss is based on Federal Rule of Civil
Procedure 12(b)(6), which allows dismissal if the petitioner has failed to state a
claim upon which relief can be granted. Petitioners must plead “enough facts
to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007) (emphasis added).
Under Federal Rule of Civil Procedure 8(a)(2), a petitioner must plead
only “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Id. at 554-55 (quoting FED. R. CIV. P. 8(a)(2)). A petition does
not need “detailed factual allegations” to survive a motion to dismiss, but a
petitioner must provide the grounds for his entitlement to relief and cannot
merely recite the elements of his cause of action. Id. at 555 (citing Conley v.
Gibson, 355 U.S. 41, 47 (1957); Sanjuan v. Am. Bd. of Psychiatry and
Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994); Papasan v. Allain, 478 U.S.
4 Thus, even without the benefit of the 90 days to file a petition for certiorari
Mr. Banghart’s petition would still be timely. Without the benefit of that 90-
day period, Mr. Banghart’s petition would still have been filed with 94 days to
spare on the one-year AEDPA limitations period.
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265, 286 (1986)). There is also a “plausibility standard” which “requires a
complaint with enough factual matter (taken as true)” to support the
conclusion that the petitioner has a valid claim. Id. at 556. The petitioner’s
complaint must contain sufficiently specific factual allegations in order to cross
the line between “possibility” and “plausibility” of entitlement to relief. Id.
There are two “working principles” that apply to Rule 12(b)(6) motions.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). First, courts are not required to
accept as true legal conclusions “couched as . . . factual allegation[s]”
contained in a complaint. Id. (citing Twombly, 550 U.S. at 555). “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. (quoting Twombly, 550 U.S. at 555). Rule 8
“does not unlock the doors of discovery for a plaintiff armed with nothing more
than conclusions.” Id. at 678-79.
Second, the plausibility standard is a “context-specific task that requires
the reviewing court to draw on its judicial experience and common sense.” Id.
at 679 (quoting decision below, Iqbal v. Hasty, 490 F.3d 143, 157-158 (2d Cir.
2007)). Where the petitioner’s allegations are merely conclusory, the court may
not infer more than the mere possibility of misconduct, and the petition has
alleged “but it has not ‘show[n]’ ” that he is entitled to relief as required by Rule
8(a)(2). Iqbal, 556 U.S. at 679 (emphasis added).
The Court explained that a reviewing court should begin by identifying
statements in the complaint that are conclusory and therefore not entitled to
the presumption of truth. Id. at 679-80. Legal conclusions must be supported
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by factual allegations demonstrating the grounds for a petitioner’s entitlement
to relief. Id. at 679; Twombly, 550 U.S. at 555; FED. R. CIV. P. 8(a)(2). A court
should assume the truth only of “well-pleaded factual allegations,” and then
may proceed to determine whether the allegations “plausibly give rise to an
entitlement to relief.” Iqbal, 556 U.S. at 679.
Although a Rule 12(b)(6) motion challenges the sufficiency of a
petitioner’s pleading, courts evaluating a Rule 12(b)(6) motion are not strictly
limited to evaluating only the petition. Dittmer Props., L.P. v. F.D.I.C., 708
F.3d 1011, 1021 (8th Cir. 2013). They may consider “matters incorporated by
reference or integral to the claim, items subject to judicial notice, matters of
public record, orders, items appearing in the record of the case, and exhibits
attached to the complaint whose authenticity is unquestioned.” Id. (quoting
Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 931 n.3 (8th Cir. 2012)
(quoting 5B Charles A. Wright & Arthur R. Miller, Fed. Practice & Procedure
§ 1357 (3d ed. 2004))). In a habeas action, it is appropriate for the court to
take judicial notice of the settled record in the underlying criminal proceedings
when evaluating a motion to dismiss. See Hood v. United States, 152 F.2d 431
(8th Cir. 1946) (federal district court may take judicial notice of proceedings
from another federal district court); Matter of Phillips, 593 F.2d 356 (8th Cir.
1979) (proper for federal court to take judicial notice of state court pleadings);
Green v. White, 616 F.2d 1054 (8th Cir. 1980) (court of appeals may take
judicial notice of district court filings). This court has taken judicial notice of
Mr. Banghart’s criminal circuit court file, his direct appeal file, and his state
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habeas files at the circuit and supreme court levels. These are the principles
guiding the court’s evaluation of respondents’ motion.
E. Mr. Banghart’s Unexhausted Procedurally Defaulted Claims
1. State Court Exhaustion Requirement
Respondents argue that two of Mr. Banghart’s claims of ineffective
assistance of counsel, specifically claims two and four of grounds I and II, are
unexhausted. Docket No. 10, p. 18. Under AEDPA, federal habeas review of
state court convictions is limited to claims the petitioner previously presented
to the state courts for consideration:
(b)(1) An application for a writ of habeas corpus on behalf of person in
custody pursuant to the judgment of a State court shall not be
granted unless it appears that—
(A) the applicant has exhausted the remedies available in the
courts of the State; or
(B) (i) there is an absence of available State corrective process;
or
(ii) circumstances exist that render such process ineffective
to protect the rights of the applicant.
* * *
(c) An applicant shall not be deemed to have exhausted the remedies
available in the courts of the State, within the meaning of this section,
if he has the right under the law of the State to raise, by any available
procedure, the question presented.
See 28 U.S.C. § 2254(b) and (c). The above codifies what was previously a
judicial doctrine of exhaustion.
A federal court may not consider a claim for relief in a habeas corpus
petition if the petitioner has not exhausted his state remedies. See 28 U.S.C.
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§ 2254(b). “[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). If a ground for
relief in the petitioner’s claim makes factual or legal arguments that were not
present in the petitioner’s state claim, then the ground is not exhausted.
Kenley v. Armontrout, 937 F.2d 1298, 1302 (8th Cir. 1991). The exhaustion
doctrine protects the state courts’ role in enforcing federal law and prevents the
disruption of state judicial proceedings. Rose v. Lundy, 455 U.S. 509, 518
(1982). The Supreme Court has stated:
Because it would be unseemly in our dual system of government for a
federal district court to upset a state court conviction without an
opportunity to the state courts to correct a constitutional violation,
federal courts apply the doctrine of comity, which teaches that one court
should defer action on causes properly within its jurisdiction until the
courts of another sovereignty with concurrent powers, and already
cognizant of the litigation, have had an opportunity to pass upon the
matter.
Rose, 455 U.S. at 518 (quotations omitted), superseded by AEDPA as noted in
Rhines v. Weber, 544 U.S. 269, 273-75 (2005).
The exhaustion rule requires state prisoners to seek complete relief on all
claims in state court prior to filing a writ of habeas corpus in federal court.
Federal courts should, therefore, dismiss a petition for a writ of habeas corpus
that contains claims that the petitioner did not exhaust at the state level. See
28 U.S.C. § 2254(b) & (c); Rose, 455 U.S. at 522. A petitioner’s procedurally
defaulted claims are barred from federal review unless there is a showing of
either cause and prejudice or actual innocence. Bousley v. United States, 523
U.S. 614, 622 (1998).
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A prisoner must complete the entire state court post-conviction process—
a habeas proceeding in circuit court and an appeal to the Supreme Court of
South Dakota—on each of his claims before he can raise them in federal court.
O’Sullivan, 526 U.S. at 845; Tripp v. Dooley, No. 4:20-cv-04177-LLP, 2020 WL
8483823, at *1 (D.S.D. Dec. 17, 2020). He “must ‘present the same facts and
legal theories to the state court that he later presents to the federal courts.’ ”
Stephen v. Smith, 963 F.3d 795, 801 (8th Cir. 2020) (quoting Jones v. Jerrison,
20 F.3d 849, 854 (8th Cir. 1994)).
A federal court must determine whether the petitioner fairly presented an
issue to the state courts in a federal constitutional context. Satter v. Leapley,
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.
(citation omitted). “[S]tate prisoners must give the state courts one full
opportunity to resolve any constitutional issues by invoking one complete
round of the State’s established appeallate review process.” O’Sullivan, 526
U.S. at 845. “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)
(citation omitted).
a. Did Mr. Banghart Present His Federal Habeas Corpus
Claims to the State Courts?
Fairly presenting a federal claim requires more than simply going
through the state courts:
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The rule would serve no purpose if it could be satisfied by raising
one claim in the state courts and another in the federal courts.
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.
Accordingly, we have required a state prisoner to present the state
courts with the same claim he urges upon the federal courts.
Picard v. Connor, 404 U.S. 270, 276 (1971). It is also not enough for the
petitioner to assert facts necessary to support a federal claim or to assert a
similar state-law claim. Ashker, 5 F.3d at 1179. The petitioner must present
both the factual and legal premises of the federal claims to the state court.
Smittie v. Lockhart, 843 F.2d 295, 297 (8th Cir. 1988) (citation omitted).
“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.’ ” Ashker, 5 F.3d at 1179
(quoting Kelly v. Trickey, 844 F.2d 557, 558 (8th Cir. 1988)). This does not,
however, require petitioner to cite “book and verse on the federal constitution.”
Picard, 404 U.S. at 278 (citing Daugharty v. Gladden, 257 F.2d 750, 758 (9th
Cir. 1958)). The petitioner must simply make apparent the constitutional
substance of the claim. Satter, 977 F.2d at 1262.
Respondent argues that two of Mr. Banghart’s claims, claims two and
four, are improperly exhausted and there are no non-futile state remedies that
he could pursue to properly exhaust those claims. See Docket No. 10, pp. 20-
22. Mr. Banghart opposes this, arguing that “[a]ll claims were submitted to
State Court on Petition, testimony was taken and Judge Hanson ruled on all 4
claims.” Docket No. 18, p. 3.
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In both ground I (Sixth Amendment ineffective assistance) and ground II
(Fourteenth Amendment ineffective assistance), Mr. Banghart raises four
identical claims; the court will address the two grounds together and assess
each claim in turn. Mr. Banghart’s first claim is that trial counsel were
ineffective for failing to object to evidence regarding an incident where
Mr. Banghart shaved the victim’s pubic area with a razor. Docket No. 1,
pp. 4-6. According to the record, Mr. Banghart raised this claim in his state
habeas petition (Docket No. 10-7, p. 3), presented evidence to support his
argument (Docket No. 10-9, pp. 14-16), and raised this claim in his motion for
certificate of probable cause to the Supreme Court of South Dakota after the
habeas court denied relief (Docket No. 10-12, p. 3). Therefore, claim one was
properly exhausted, and, thus, Mr. Banghart can raise it with this court.
Mr. Banghart’s third claim is that trial counsel were ineffective in their
handling of the state’s expert witness. Docket No. 1, pp. 4-6. Specifically,
Mr. Banghart contends that trial counsel: (1) failed to object to testimony
presented by an expert witness called by the state; (2) failed to consult with or
present testimony from an expert to counter or rebut said testimony; and
(3) failed to present expert testimony showing that the proper procedures for
conducting a forensic interview of the alleged child victim were not followed and
that the investigators’ use of the allged child victim in attempting to elicit
incriminating statements from the petitioner served to improperly influence
and reinforce the memory of a child witness. Id. According to the record,
Mr. Banghart raised this claim in his state habeas petition (Docket No. 10-7,
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p. 5), presented evidence to support his argument (Docket No. 10-9, pp. 5-14),
and raised this claim in his motion for certificate of probable cause to the
Supreme Court of South Dakota after the habeas court denied relief (Docket
No. 10-12, p. 3). Therefore, the court holds that claim three was properly
exhausted, and, thus, Mr. Banghart can raise it with this court.
However, Mr. Banghart’s second and fourth claims are unexhausted.
First, looking to the South Dakota Circuit Court’s opinion denying
Mr. Banghart habeas relief, the court stated, “Petitioner raised issues three and
four5 in his Petition, but it appears he has abandoned them because he did not
address them at the evidentiary hearing or in his post-hearing briefs. No
evidence was provided to establish ineffective assistance of counsel with
respect to these claims.” Docket No. 10-9, p. 17. Second, Mr. Banghart
abandoned these claims in his motion for certificate of probable cause to the
Supreme Court of South Dakota after his habeas relief was denied. See Docket
No. 10-12, p. 3.
By abandoning these claims, Mr. Banghart left “ ‘an unresolved question
of fact . . . [that has] an important bearing’ on [his] federal habeas claim.” King
v. Kemna, 266 F.3d 816, 822 (8th Cir. 2001) (quoting Granberry v. Greer, 481
U.S. 129, 134-35 (1987)). “Where a prisioner deliberately bypasses an
adequate state remedy, or purposefully withholds or withdraws a known claim
from a prior application for federal relief, that may be deemed a waiver of any
5 Issues three and four that the state circuit judge referenced are similar to
claims two and four in grounds I and II.
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right to a subsequent hearing on the claim.” Wilwording v. Swenson, 502 F.2d
844, 849 (8th Cir. 1974). Here, because Mr. Banghart abandoned claims two
and four midstream in his state habeas action, in his post-hearing briefs, and
in his certificate of probable cause to the South Dakota Supreme Court,
Mr. Banghart deprived those courts of the first chance to decide his claims.
See Rose, 455 U.S. at 518. Therefore, Mr. Banghart’s claims two and four of
grounds I and II for habeas relief are not exhausted.
b. Are There Available, Non-Futile State Remedies?
The next question the court must analyze is whether it would serve any
purpose to dismiss Mr. Banghart’s unexhausted claims without prejudice so
that he can return to state court to present those claims. Put another way, if
the court did so order, are there any currently available non-futile state
remedies for Mr. Banghart? Unfortunately, the answer is “no.”
South Dakota law provides as follows for second or successive state
habeas petitions:
A claim presented in a second or subsequent habeas corpus
application under this chapter that was presented in a prior
application under this chapter or otherwise to the courts of this
state by the same applicant shall be dismissed.
Before a second or subsequent application for a writ of habeas
corpus may be filed, the applicant shall move in the circuit court of
appropriate jurisdiction for an order authorizing the applicant to
file the application.
The assigned judge shall enter an order denying leave to file a
second or successive application for a writ of habeas corpus
unless:
(1) The applicant identifies newly discovered evidence that, if
proven and viewed in light of the evidence as a whole, would
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be sufficient to establish by clear and convincing evidence
that no reasonable fact finder would have found the
applicant guilty of the underlying offense; or
(2) The application raises a new rule of constitutional law,
made retroactive to cases on collateral review by the United
States Supreme Court and the South Dakota Supreme
Court, that was previously unavailable. The grant or denial
of an authorization by the circuit court to file a second or
subsequent application shall not be appealable.
See SDCL § 21-27-5.1. The court finds that Mr. Banghart cannot satisfy these
exceptions.
Here, Mr. Banghart’s claims all arise out of alleged ineffective assistance
provided by his two trial attorneys. Mr. Banghart has been aware of the facts
surrounding his trial and trial counsel’s handling of his case since his trial’s
conclusion, and he has not alleged any newly discovered evidence.
Likewise, all four of Mr. Banghart’s claims, arising out of his trial
attorney’s ineffective assistance, are well established through Supreme Court
precedent in Strickland. Since 1984, Strickland has been the landmark case
used by federal and state courts across the country in determining ineffective
assistance of counsel. Therefore, Mr. Banghart cannot argue that his claims
are based on a new, and retroactively applied, rule of constitutional law. Thus,
Mr. Banghart does not enjoy any non-futile state avenue for pursuing
exhaustion of state remedies.
2. Procedural Default
Closely related to the doctrine of state court exhaustion is the doctrine of
procedural default. Both doctrines are animated by the same principals of
comity—that is, in our dual system of government, federal courts should defer
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action on habeas matters before them when to act on those petitions would
undermine the authority of state courts, which have equal obligations to
uphold the constitution. See Coleman v. Thompson, 501 U.S. 722, 731 (1991)
(quoting Rose, 455 U.S. at 518). If a petitioner has failed to exhaust
administrative remedies, and further non-futile remedies are still available to
him in state court, then the federal court dismisses the federal petition without
prejudice, allowing the petitioner to exhaust his state court remedies.
Carmichael v. White, 163 F.3d 1044, 1045 (8th Cir. 1998). Where the
petitioner has no further state remedies available to him, analysis of the
procedural default doctrine is the next step.
Procedural default is sometimes called the “adequate and independent
state ground” doctrine. A federal habeas petitioner who has defaulted his
federal claims in state court by failing to meet the state’s procedural rules for
presenting those claims has committed “procedural default.” Coleman, 501
U.S. at 731-32, 735 n.1. If federal courts allowed such claims to be heard in
federal court, they would be allowing habeas petitioners to perform an “end
run” around state procedural rules. Id. However, where no further non-futile
remedy exists in state court, it is not feasible to require the petitioner to return
to state court as would be the case in a dismissal for failure to exhaust
state remedies.
In the Coleman case, the habeas petitioner, Coleman, had defaulted all of
his federal claims by filing his notice of appeal from the state trial court three
days late. Coleman, 501 U.S. at 727-28, 749. The state appellate court then
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refused to hear Coleman’s appeal based on his late filing of his notice of appeal.
Id. at 740. The Court held “[i]n all cases in which a state prisoner has
defaulted his federal claims in state court pursuant to an independent and
adequate state procedural rule, federal habeas review of the claims is barred
unless the prisoner can demonstrate cause for the default and actual prejudice
as a result of the alleged violation of federal law, or demonstrate that failure to
consider the claims will result in a fundamental miscarriage of justice.”6 Id. at
750. See also Ruiz v. Norris, 71 F.3d 1404, 1409 (8th Cir. 1995) (“A district
court need not consider the merits of a procedurally defaulted claim.”)
(citation omitted).
“A state procedural default bars federal habeas review unless the
petitioner can demonstrate cause for the default and actual prejudice as a
result of the alleged violation of federal law.” Maynard v. Lockhart, 981 F.2d
981, 984 (8th Cir. 1992) (quotation omitted, emphasis added). If no “cause” is
found, the court need not consider whether actual prejudice occurred. Id. at
985; Wyldes v. Hundley, 69 F.3d 247, 253 (8th Cir. 1995) (citations omitted).
“The requirement of cause . . . is based on the principle that petitioner
must conduct a reasonable and diligent investigation aimed at including all
relevant claims and grounds for relief . . . .” Cornman v. Armontrout, 959 F.2d
6 To fit within the fundamental miscarriage of justice exception, the petitioner
must make a showing of actual innocence. Schlup v. Delo, 513 U.S. 298, 321
(1995), superseded on other grounds by statute as stated in Rivas v. Fischer,
687 F.3d 514, 541 n.36 (2d Cir. 2012). A successful claim of actual innocence
requires the petitioner to support his allegations with new, reliable evidence.
Weeks v. Bowersox, 119 F.3d 1342, 1351 (8th Cir. 1997).
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727, 729 (8th Cir. 1992) (quotation omitted). The habeas petitioner must show
that “some objective fator external to [petitioner] impeded [his] efforts.” Id.
(quoting Murray v. Carrier, 477 U.S. 478, 488 (1986) (emphasis added)).
A petitioner may show cause by demonstrating that the factual or legal
basis for a claim was not reasonably available to the petitioner at the time or
that there was interference by officials which prevented the petitioner from
exhausting his state remedies. Murray, 477 U.S. at 488. A petitioner’s lay
status, pro se status, and lack of education are not sufficient cause to excuse a
procedural lapse in failing to pursue state court remedies. See Stewart v. Nix,
31 F.3d 741, 743 (8th Cir. 1994); Smittie, 843 F.2d at 298. Illiteracy or low
intelligence are also not enough to demonstrate cause. See Criswell v. United
States, 108 F.3d 1381, *1 (8th Cir. 1997) (per curiam) (unpub’d); Cornman,
959 F.2d at 729. Finally, neither is ignorance of the law. Maxie v. Webster,
No. 91-3292, 1992 WL 302247, at *1, 978 F.2d 1264 (table) (8th Cir. Oct.
26, 1992). Here, Mr. Banghart’s two claims that are facing procedural default
are claims two and four of grounds I and II.
Mr. Banghart argues that claims two and four of ground I and II are
properly exhausted and not procedurally defaulted because, “All Claims were
submitted to State Court on Petition, testimony was taken and Judge Hanson
ruled on all 4 claims.” Docket No. 18, p. 3. Essentially, Mr. Banghart is
arguring that he did present these two claims at the state habeas hearings and
Judge Hanson ruled on all four of his claims. This is incorrect.
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While Mr. Banghart did submit all four claims to state court in his
habeas petition, no evidence was presented for claims two and four of grounds
I and II. For claim two, at the state habeas proceedings, Mr. Binger was asked
about testimony regarding the credibility of the chief investigator. See
Banghart v. Darin Young, Civ 17-100 at pp. 247-48 (Habeas Hearing
Transcript (“HT”) at pp. 79-80). Mr. Binger responded, “That argument or that
one subsection of our petition claiming that the defense attorney had elicited
damaging statements from the agent page, that’s just one subsection of our
petition and we’ll withdraw it.” Id. at 248 (HT at p. 80).
For claim four, at the state habeas proceedings, Mr. Binger stated, “And
Number 47 I will concede that we started this case in 2017 believing that there
would be new evidence that we could produce. We did not for various reasons,
so I think her point about Number 4 is probably valid. We're not really going to
end up having an argument on that point.” Id. at p. 94 (HT at p. 57). Judge
Hanson then asked, “And item 4, the petitioner does not have evidence or
further information other than perhaps any relation to the transcript that they
would offer at this point,” to which Mr. Binger responded in the affirmative. Id.
at 94-95 (HT at p. 57-58). Clearly, these statements by Mr. Binger show that
Mr. Banghart’s claims two and four were abandoned at the state
habeas hearing.
Additionally, Mr. Banghart’s argument that Judge Hanson ruled on all
four claims is misplaced. In her memorandum opinion denying habeas relief,
7 Number 4 refers to Mr. Banghart’s fourth claim in his habeas petition.
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Judge Hanson correctly concluded that issues three and four, or claims two
and four in Mr. Banghart’s federal habeas petition, were abandoned at the
hearings and no evidence was provided to establish ineffective assistance of
counsel with respect to them. See Docket No. 10-9, p. 17. Judge Hanson did
not address the merits of claims two and four when making her ruling, but
rather ruled that these claim were, in effect, defaulted. Therefore,
Mr. Banghart’s argument that claims two and four of his habeas petition were
properly presented in the state habeas proceedings fails to pass muster.
Thus, unless Mr. Banghart argues that Mr. Binger’s failure to present
claims two and four at the state habeas hearing was ineffective assistance of
counsel and constitutes “cause” to excuse him from procedural default, then
these two claims are procedurally defaulted. Mr. Banghart never makes such
an argument. In fact, Mr. Banghart never alleges that his state habeas
counsel, Mr. Binger, was ineffective at all—rather, Mr. Banghart’s claims stem
solely from his trial counsel’s performance. See Docket No. 1, p. 5-6. However,
for purposes of this report and recommendation, the court will address the
issues of cause and actual prejudice.
If Mr. Banghart were to have made the assertion that Mr. Binger was
ineffective at the habeas level and that this ineffectiveness constitutes cause,
he still would have failed to establish cause for the default and actual prejudice
as a result of the alleged violation of federal law. Here, Mr. Banghart’s state
habeas attorney, Mr. Binger, raised all four claims under ground I and II of
ineffective assistance of counsel. See Docket No. 10-7. On behalf of Mr.
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Banghart, Mr. Binger acted reasonably by focusing his attention in the state
evidentiary hearings on trial counsels’ handling of expert witnesses and the
shaving incident (claims one and three) and abandoning the claims related to
the handling of the state’s chief investigator and failure to conduct an
investigation (claims two and four).
The Supreme Court has long held that counsel need only raise those
arguments that are likely to succeed. See Davila v. Davis, 137 S. Ct. 2058,
2067 (2017) (citing Smith v. Murray, 477 U.S. 527, 536 (1986); Jones v.
Barnes, 463 U.S. 745, 751-53 (1983)). “Reasonable . . . strategy requires an
attorney to limit the appeal to those issues which he determines to have the
highest likelihood of success. To perform competently under the Sixth
Amendment, counsel is neither required nor even advised to raise every
conceivable issue.” Parker v. Bowersox, 94 F.3d 458, 462 (8th Cir. 1996). The
decision to pursue some arguments and abandon others is only deficient
performance if the abandoned claim “was plainly stronger than those actually
presented.” Davila, 137 S. Ct. at 2067.
Here, it was reasonable for Mr. Binger to abandon claims two and four of
grounds I and II. Further, Mr. Banghart has made no assertion that these two
abandoned claims—trial counsel’s failure in handling the state’s chief
investigator and failure to investigate the victim’s claims—were “plainly
stronger than those [claims] actually presented.” Id. What Mr. Banghart has
effectively done is re-alleged all four claims that he initially presented in his
state habeas petition without asserting why foregoing claims two and four
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during the state proceedings was improper (or even acknowledging that these
claims were waived). This falls far short of his burden to demonstrate cause.
Therefore, Mr. Banghart has failed to show cause exists to excuse his
procedural default of those claims.
Because Mr. Banghart has failed to show cause, the court need not reach
the question of actual prejudice. Wyldes v. Hundley, 69 F.3d 247, 253 (8th Cir.
1995); Oglesby v. Bowersox, 592 F.3d 922, 926 (8th Cir. 2010). However, for
purposes of this report and recommendation, the court will address the issue
of whether Mr. Banghart was prejudiced by his default. In order to properly
allege actual prejudice, Mr. Banghart must demonstrate that there was a
reasonable probability that, due to the decisions by Mr. Binger, the result of
the state habeas proceedings would have been different. Strickland, 466 U.S.
at 689. Furthermore, Mr. Banghart must demonstrate not merely that the
errors in his proceedings constituted a possibility of prejudice, but that the
errors worked to his actual and substantial disadvantage, infecting his entire
state habeas action. United States v. Frady, 456 U.S. 152, 170 (1982); Correll
v. Stewart, 137 F.3d 1404, 1416 (9th Cir. 1998). The court finds that
Mr. Banghart has not demonstrated any actual prejudice. In his reply to
respondents’ motion to dismiss, Mr. Banghart merely denied the reasoning
made throughout the motion to dismiss without alleging any facts or making
any argument to support his denials. See Docket No. 18, p. 6-7.
Mr. Banghart has also failed to plead a fundamental miscarriage of
justice or actual innocence. A successful claim of actual innocence requires
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the petitioner to support his allegations with new, reliable evidence. Weeks v.
Bowersox, 119 F.3d 1342, 1351 (8th Cir. 1997). Mr. Banghart “must establish
that, in light of new evidence, ‘it is more likely than not that no reasonable
juror would have found [him] guilty beyond a reasonable doubt.’ ” House v.
Bell, 547 U.S. 518, 536-37 (2006) (quoting Schlup, 513 U.S. at 327). Here,
Mr. Banghart has presented no new evidence to prove his claims of ineffective
assistance of counsel. In fact, Mr. Banghart continues to assert the same four
claims of ineffective assistance of counsel that he initially alleged in his state
habeas petition back in 2017 and 2019. See Docket No. 10-7.
Therefore, Mr. Banghart has failed to meet his burden of proving both
cause and actual prejudice to allow consideration of his procedurally defaulted
claims, and has failed to show actual innocence. Thus, this court finds that
claims two and four of grounds I and II should be dismissed with prejudice.
See Armstrong v. Iowa, 418 F.3d 924, 926-27 (8th Cir. 2005) (dismissal with
prejudice is appropriate when petitioner has procedurally defaulted).
F. Mr. Banghart’s Properly Exhausted Claims
Mr. Banghart has properly presented two claims of ineffective assistance
of counsel to the state courts—claims that trial counsel were ineffective for
failing to object to evidence regarding the shaving incident and in their
handling of the state’s expert witness. Because these two claims are properly
exhausted and are not procedurally defaulted, the court addresses the merits
of claims one and three of grounds I and II.
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1. Standards Applicable to Mr. Banghart’s Ineffective Assistance
Claims
The Sixth Amendment of the Constitution of the United States affords a
criminal defendant with the right to assistance of counsel. U.S. Const.
amend. VI. The Supreme Court “has recognized that ‘the right to counsel is the
right to the effective assistance of counsel.’ ” Strickland v. Washington, 466
U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771, n.14
(1970)). Strickland is the benchmark case for determining if counsel’s
assistance was so defective as to violate a criminal defendant’s Sixth
Amendment rights and require reversal of a conviction. Id. at 687.
“When a convicted defendant complains of the ineffectiveness of
counsel’s assistance, the defendant must show that counsel’s representation
fell below an objective standard of reasonableness.” Id. at 687-88. The
defendant must also show that counsel’s unreasonable errors or deficiencies
prejudiced the defense and affected the judgment. Id. at 691. The defendant
must show “there is a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respecting guilt.” Id. at 695. In
sum, a defendant must satisfy the following two-prong test. Id. at 687.
First, the defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that counsel
was not functioning as the “counsel” guaranteed the defendant by the
Sixth Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that
counsel’s errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable. Unless a defendant makes both
showings, it cannot be said that the conviction or death sentence
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resulted from a breakdown in the adversary process that renders the
result unreliable.
Id.
“There is a presumption that any challenged action was sound trial
strategy and that counsel rendered adequate assistance and made all
significant decisions in the exercise of professional judgment.” Hall v.
Luebbers, 296 F.3d 685, 692 (8th Cir. 2002) (quotations omitted). It is the
petitioner’s burden to overcome this presumption, and a “petitioner cannot
build a showing of prejudice on a series of errors, none of which would by itself
meet the prejudice test.” Id.
Counsel’s conduct must be judged by the standards for legal
representation which existed at the time of the representation, not by
standards promulgated after the representation. Bobby v. Van Hook, 558 U.S.
4, 7-9 (2009). American Bar Association standards and similar directives to
lawyers are only guides as to the reasonableness of counsel’s conduct; they are
not its definitive definition. Id.
The Supreme Court distinguishes between those cases in which the new
evidence “would barely have altered the sentencing profile presented to the
sentencing judge,” and those that would have had a reasonable probability of
changing the result. Porter v. McCollum, 558 U.S. 30, 41 (2009) (quotation
omitted). In assessing the prejudice prong, it is important for courts to
consider “the totality of the available mitigation evidence—both that adduced at
trial, and the evidence adduced in the habeas proceeding—and reweigh it
against the evidence in aggravation.” Id. at 40-41 (internal quotation omitted,
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cleaned up). It is not necessary for the petitioner to show “that counsel’s
deficient conduct more likely than altered the outcome” of his case, only that
there is “a probability sufficient to undermine confidence in [that] outcome.”
Id. at 44 (quotation omitted).
Finally, “[i]neffective assistance of counsel is a mixed question of law and
fact and thus on habeas review a federal court is not bound by a state court’s
conclusion that counsel was effective.” Whitehead v. Dormire, 340 F.3d 532,
537 (8th Cir. 2003). However, “ ‘state court findings of fact made in the course
of deciding an ineffectiveness claim are subject to the deference requirement of
§2254(d).’ ” Id. (citing Strickland, 466 U.S. at 698). That is, “[a] state court’s
findings of fact are entitled to a presumption of correctness.” Miller v. Dormire,
310 F.3d 600 (8th Cir. 2002). Additionally, judicial scrutiny of attorney
performance is highly deferential, with a strong presumption that counsel’s
conduct falls within the range of reasonable professional conduct. Strickland,
466 U.S. at 698.
Where a claim of ineffective assistance of counsel is made in a § 2254
petition, the already deferential standard of review of counsel’s conduct is
paired with the extremely deferential standard of review applicable to federal
court review of a state court’s rejection of a habeas claim to make the federal
court’s “highly deferential” review “doubly” so. Harrington v. Richter, 562 U.S.
86, 105 (2011). “Federal habeas courts must guard against the danger of
equating unreasonableness under Strickland with unreasonableness under
§ 2254(d).” Id. The inquiry when a Strickland claim is raised in a § 2254
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petition is “whether there is any reasonable argument that counsel satisfied
Stickland’s deferential standard.” Id. The court now turns to each of
Mr. Banghart’s assertions that counsel was ineffective.
2. Failure to Object to Evidence of Shaving Incident
First, Mr. Banghart asserts in claim one of grounds I and II that “Trial
Counsels’ performance was deficient in that they failed to object to
inadmissible testimony offered, or, in the alternative, failed to request any form
of cautionary or limiting instruction regarding an incident wherein Petitioner
shaved the victims pubic area with a razor.” Docket No. 1, pp. 5-6.
Under Strickland, strategic decisions such as when to object and how to
handle a witness are “virtually unchallengable.” 466 U.S. at 690. Further, the
Eighth Circuit has made it clear that trial counsel does not provide deficient
performance when they choose not to raise a frivolous or futile motion or
objection. Anderson v. United States, 762 F.3d 787, 794 (8th Cir. 2014)
(“Counsel is not ineffective for failing to pursue a motion to suppress that he
reasonably believes would be futile.”) (citations omitted); Garrett v. United
States, 78 F.3d 1296, 1303 n.11 (8th Cir. 1996) (“Ineffective assistance should
not be found under Strickland when counsel fails to perform those acts which
clearly appear to be futile or fruitless at the time the decision must be made.”);
Hale v. Lockhart, 903 F.2d 545, 549-50 (8th Cir. 1990) (“[W]e therefore hold
that the decision of Hale’s counsel not to file a futile motion to transfer was
neither deficient performance on his part nor prejudicial to Hale.”).
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Here, during a recorded conversation between the victim and
Mr. Banghart, the victim told Mr. Banghart that she did not like they way he
touched her and her brother. Docket No. 10-9, p. 15. Mr. Banghart responded
to the victim by stating the only touching that occurred was involving the
shaving incident. Id. Later on, Mr. Banghart mentioned the shaving incident
to law enforcement, who subsequently confirmed with the victim that
Mr. Banghart shaved her pubic area when she was twelve years old. Id. When
told by law enforcement that the victim was alleging sexual abuse,
Mr. Banghart indicated that he had not realized the victim’s allegations were
sexual in nature. Id. He later admitted during an interview with law
enforcement that he had touched the victim’s vaginal area during the shaving
incident in question. Id.; see also State v. Banghart, 41CRI14-000648 at
p. 630 (Vol. II JT at p. 45).
Given these facts, any objection by trial counsel would have been futile
because this testimony regarding the shaving incident would be admissible
evidence as an opposing party statement, or party admission. Under SDCL
§ 19-19-801(d)(2), an opposing party statement is a statement that is offered
against an opposing party and: (A) was made by the party in an individual or
representative capacity; (B) is one the party manifested that it adopted or
believed to be true; (C) was made by a person whom the party authorized to
make a statement on the subject; (D) was made by the party’s agent or
employee on a matter within the scope of that relationship and while it existed;
or (E) was made by the party’s coconspirator during and in furtherance of the
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conspiracy. SDCL § 19-19-801(d)(2)(A-E); see also FED. R. EVID. 801(d)(2)(A-E).
Here, clearly Mr. Banghart’s admission to law enforcement that he had touched
the victim’s vaginal area during the shaving incident was a statement made by
Mr. Banghart and offered against him at trial. Thus, any objection to this
evidence would have been overruled by the trial judge as an opposing party
statement pursuant to SDCL § 19-19-801(d)(2)(A).
Also, this evidence is highly relevant to the credibility of Mr. Banghart
and the victim, whether these assaults actually occurred, as well as the
circumstances out of which the original criminal charges arose, and
Mr. Banghart presents no arguments to contest it. The probative value of this
evidence is not substantially outweighed by the danger of unfair prejudice to
Mr. Banghart, and, thus, any objection by trial counsel would have been futile.
See SDCL § 19-19-403; FED. R. EVID. 403.
Mr. Banghart has not shownthat his trial counsel’s performance was
constitutionally deficient under the standards imposed by Strickland. Further,
Mr. Banghart has failed to demonstrate how he was prejudiced by his trial
counsel’s strategy and their failure to object because, even if they had objected
to the evidence, Mr. Banghart fails to show how the evidence was inadmissible
in light of SDCL §§ 19-19-801(d)(2) and 19-19-403.
Mr. Banghart asserts, alternatively, trial counsel “failed to request any
form of cautionary or limiting instruction . . .” Docket No. 1, pp. 5-6. However,
this claim fails as well. In Berghuis v. Thompkins, the court held that defense
counsel’s failure, in a prosecution for murder and assault, to request a limiting
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instruction did not amount to ineffective assistance. 560 U.S. 370, 389-90
(2010). The Court further reasoned that even if the failure to request a
limiting instruction was deficient performance, there was no prejudice to the
defendant in light of other evidence of his guilt. Id. Here, trial counsel’s
decision to not seek a limiting instruction did not amount to ineffective
assistance. As discussed previously, any attempt to limit the testimony
evidence would have been futile as the evidence was clearly admissible as an
opposing party statement and its probative value is not substantially
outweighed by the dangers of unfair prejudice.
Therefore, the court finds that Mr. Banghart has failed to demonstrate
that his trial counsel’s performance was constitutionally deficient for failing to
object or request a limiting instruction to evidence surrounding the shaving
incident and has failed to demonstrate how that failure has prejudiced his
defense. Thus, claim one of grounds I and II for habeas relief should be denied
because the state court’s determination of this claim was not an unreasonable
application of Strickland and thus does not warrant federal habeas relief.
3. Trial Counsel’s Ineffective Handling of State’s Expert Witness
Mr. Banghart asserts in claim three of ground I and II that “Defense
Counsel failed to object to testimony presented by an expert witness called by
the State, and failed to consult with or present testimony from an expert to
counter or rebut said testimony. Defense Counsel further failed to present
expert testimony showing that the proper procedures for conducting a forensic
interview of the alleged child victim were not followed, and that the
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investigator’s use of the alleged child victim in attempting to elicit
incriminiating statements from the Peititoner served to improperly influence
and reinforce the memory of a child witness.” Docket No. 1, pp. 5-6.
At trial, the state called Krista Heeren-Graber, the executive director of
the South Dakota Network Against Family Violence and Sexual Assault, to
testify as an expert. Docket No. 10-10, p. 2. Ms. Heeren-Graber testified
generally about the reasons and ways a victim may or may not disclose abuse
and common reactions of a victim of sexual abuse. Id. In South Dakota child
sexual abuse cases, qualified experts can inform the jury of characteristics in
sexually abused children and describe the characteristics the child exhibits.
See State v. Buchholtz, 841 N.W.2d 449, 459 (S.D. 2013).
Mr. Banghart first argues that trial counsel failed to raise objections to
Ms. Heeren-Graber’s testimony. Again, under Strickland, strategic decisions
such as when to object and how to handle a witness are “virtually
unchallengable.” 466 U.S. at 690. According to the record, as the state was
examining Ms. Heeren-Graber to establish her qualifications as an expert, trial
counsel did object, challenging her experience with victims of sexual assault,
and was permitted to conduct a voir dire examination of Ms. Heeren-Graber.
Docket No. 10-10, p. 2. After the voir dire examination of Ms. Heeren-Graber
by Mr. Banghart’s trial counsel, the trial court overruled the objection, noted it,
and permitted the state to proceed with its examination. Id. Any further
objection by Mr. Banghart’s trial counsel would have been futile. Mr. Banghart
has not shown he was prejudiced by trial counsel’s strategy and their failure to
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object because, even if they had further objected to Ms. Heeren-Graber’s
testimony, Mr. Banghart has failed to show that the testimony was
inadmissible. Indeed, Mr. Banghart has not identified any specific testimony
which he believes was inadmissible. Therefore, Mr. Banghart’s trial counsel
was not constitutionally deficient, and Mr. Banghart has not demonstrated
prejudice from trial counsel’s decision to forego further objection to Ms.
Heeren-Graber’s testimony as an expert witness.
Next, Mr. Banghart argues that trial counsel’s performance was deficient
because they failed to call their own expert to challenge the credentials of
Ms. Heeren-Graber, to address the proper procedures of conducting a forensic
interview of a child sexual assault victim, and to counter the investigator’s use
of the alleged child victim in attempting to elicit incriminiating statements
from him.
However, Mr. Banghart does not support this criticism with specific
testimony or opinions which he alleges would have had a reasonable
probability of changing the outcome of his trial. See Ashker v. Class, 152 F.3d
863, 876 (8th Cir. 1998) (rejecting ineffective assistance claim grounded in
failure to present an expert witness because habeas petitioner made no
showing of relevant, exculpatory information an expert would have provided);
Ellefson v. Hopkins, 5 F.3d 1149, 1150-51 (8th Cir. 1993) (trial counsel’s
strategy to forego calling expert and rely on cross-examination of prosecution
expert deemed not ineffective assistance of counse). See also Wildman v.
Johnson, 261 F.3d 832, 839 (9th Cir. 2001) (petitioner failed to show ineffective
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assistance because he did not demonstrate how his case was prejudiced by not
retaining an expert; “[petitioner] offered no evidence that an . . . expert would
have testified on his behalf at trial. He merely speculates that such an expert
could be found. Such speculation, however, is insufficient to establish
prejudice. . . . [S]peculating as to what [an] expert would say is not enough to
establish prejudice.”) (citation omitted).
“[A] meaningful opportunity to present a complete defense does not
translate into the right of a defendant to present any evidence he may deem
important to his defense.” Strickland v. Lee, 471 F. Supp. 2d 557, 617
(W.D.N.C. 2007) (citation and quotation omitted). Instead, to prove prejudice,
Mr. Banghart must show the proposed uncalled witness would have testified in
his defense, that his testimony would have been favorable, and that his
testimony “would have probably changed the outcome of the trial.” See
Lawrence v. Armontrout, 900 F.2d 127, 130 (8th Cir. 1990); Stewart v. Nix, 31
F.3d 741, 744 (8th Cir. 1994). The court “should avoid the distorting effects of
hindsight and try to evaluate counsel’s conduct by looking at the
circumstances as they must have appeared to counsel at the time.” Rodela-
Aguilar v. United States, 596 F.3d 457, 461 (8th Cir. 2010) (quotation omitted).
“[C]omplaints of uncalled witnesses are not favored . . . because allegations of
what the witness would have testified [to] are largely speculative.” Evans v.
Cockrell, 285 F.3d 370, 377 (5th Cir. 2002) (citation omitted). “[T]he petitioner
ordinarily should . . . demonstrate, with some precision, the content of the
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testimony they would have given at trial.” Lawrence, 900 F.2d at 130
(quotation omitted).
Without identifying who could have been called as an expert, if that
expert would actually agree to testify on Mr. Banghart’s behalf, or what exactly
the expert would have testified about, Mr. Banghart merely postulates that
such an expert exists. Mr. Banghart has failed to show that calling an expert
witness would have favorably influenced and/or changed the jury’s verdict or
the sentence imposed by the trial judge. Lawrence, 900 F.2d at 130. Trial
counsel made the strategic decision to challenge Ms. Heeren-Graber’s
credentials not by calling another expert, but through cross-examination. See
Docket No. 10-9, p. 7. On cross-examination, trial counsel adequately
challenged Ms. Herren-Graber’s background, training, education, and
experience with sexual assault victims, statistics, and delayed reporting of
sexual assault. Docket No. 10-10, pp. 2-3. The Eighth Circuit has held that
this strategy is not deemed ineffective assistance of counsel. See Ellefson, 5
F.3d at 1150-51.
Mr. Banghart, therefore, failed to carry his burden to show the use an
expert witness (1) would have been willing to testify on his behalf; (2) what
specifically their testimony would have been or, most importantly; (3) that such
testimony would have a reasonable probability of changing the trial’s outcome.
Thus, the court finds that Mr. Banghart has failed to demonstrate that his trial
counsel’s performance was constitutionally deficient in dealing with the state’s
expert and not calling their own expert and has failed to demonstrate how that
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failure has prejudiced his defense. Claim three of grounds I and II for habeas
relief should be denied because the state court’s determination of this claim
was not an unreasonable application of Strickland and thus does not warrant
federal habeas relief.
CONCLUSION
Based on the foregoing facts, law, and analysis, this magistrate judge
respectfully recommends that Mr. Banghart’s motion for summary judgment
(Docket No. 5) be DENIED, respondents’ motion to dismiss (Docket No. 9) be
GRANTED in its entirety, and that Mr. Banghart’s habeas petition (Docket
No. 1) be dismissed with prejudice.
NOTICE TO PARTIES
The parties have fourteen (14) days after service of this report and
recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1),
unless an extension of time for good cause is obtained. Failure to file timely
objections will result in the waiver of the right to appeal questions of fact.
Objections must be timely and specific in order to require de novo review by the
district court. Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black,
781 F.2d 665 (8th Cir. 1986).
DATED this 13th day of December, 2021.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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