Neels v. Dooley

#29201-aff-PJD
2022 S.D. 4

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

****

RONALD LEE NEELS, Petitioner and Appellant,

v.

BOB DOOLEY, Warden,
Mike Durfee State Prison, and any
Successor/Predecessor in Interest, Respondent and Appellee.

****

APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA

****

THE HONORABLE DOUGLAS E. HOFFMAN
Judge

****

MARK KADI of
Minnehaha County Office
of the Public Advocate
Sioux Falls, South Dakota Attorneys for petitioner
and appellant.

JASON R. RAVNSBORG
Attorney General

MATTHEW W. TEMPLAR
Assistant Attorney General
Pierre, South Dakota Attorneys for respondent
and appellee.

****
CONSIDERED ON BRIEFS
AUGUST 24, 2020
OPINION FILED 01/19/22
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DEVANEY, Justice

[¶1.] Ronald Lee Neels applied for habeas corpus relief alleging ineffective

assistance of counsel arising out of his convictions on multiple counts of rape,

attempted rape, sexual contact, and incest. The habeas court granted the State

summary judgment, concluding that Neels was barred from establishing prejudice

under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984) because this Court summarily denied Neels relief on direct appeal for the

same issues underlying his ineffective assistance of counsel claims. Although the

court dismissed Neels’s habeas application, it issued a certificate of probable cause.

Neels appeals, and we affirm.

Factual and Procedural Background

[¶2.] In 1994, Neels married T.N.’s mother when T.N. was just two years

old, and a year later he adopted her. At first T.N. and Neels had a normal father-

daughter relationship. However, their relationship changed in 2000 when Neels

began sexually abusing her. The abuse continued into T.N.’s adulthood.

Eventually, in 2014, when she was twenty-two years old, she told her work

supervisor about her sexual relationship with Neels. The supervisor later reported

it to law enforcement and an investigation ensued. Neels admitted to law

enforcement that he had a sexual relationship with T.N. when she was ten years

old; that he had performed oral sex on her when she was fourteen or fifteen years

old; and that he had sexual intercourse with her three or four times before she

turned sixteen years old and a half a dozen times when she was between sixteen

and eighteen.

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[¶3.] The State charged Neels by indictment with sixteen sex offenses,

including multiple counts of first-degree rape, third-degree rape, attempted third-

degree rape, sexual contact with an underage person, aggravated incest, and incest.

The indictment did not specify particular acts to support each count, but each count

contained a date range as to when the corresponding charged acts allegedly

occurred.

[¶4.] At the commencement of trial, the State dismissed the first two counts

charging first-degree rape. The remaining fourteen counts were renumbered and

submitted to the jury. During the State’s opening statement, the prosecutor invited

the jurors to place themselves in the shoes of the victim and to imagine being

sexually assaulted by their father. Neels’s trial counsel did not object to these

statements. At the close of the evidence, neither the defense nor the State

requested a unanimity instruction.

[¶5.] The jury convicted Neels on all fourteen counts, and in 2016, Neels

appealed his convictions to this Court asserting multiple issues. Relevant here, he

alleged that his due process right to jury unanimity was denied because the

indictment was duplicitous, the court did not give a unanimity instruction, and the

State did not elect particular acts to support each count. He also asserted that the

prosecutor’s remarks during opening statement flagrantly inflamed the passions

and prejudices of the jurors such that he was denied a fair trial. 1 Neels

1. While not at issue in his habeas proceeding, Neels also alleged, on direct
appeal, that the circuit court abused its discretion in admitting other acts
testimony regarding physical violence by Neels against T.N. and that
cumulative errors at trial denied him of his right to a fair trial.

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acknowledged that his trial counsel did not preserve either error for review; thus, he

requested that this Court grant relief under plain error review.

[¶6.] In response, the State asserted that the indictment was not duplicitous

because T.N. testified to specific acts of sexual abuse that occurred over a twelve-

year period and corresponded to each count in the indictment. The State further

highlighted the fact that the circuit court had instructed the jury to separately

consider each count and the evidence that applies to each count before returning a

unanimous verdict. The State additionally argued that, similar to the defendant in

State v. Muhm, Neels failed to show he was prejudiced by the lack of a unanimity

instruction. See 2009 S.D. 100, ¶ 34, 775 N.W.2d 508, 520 (denying relief on appeal

because “the record indicate[s] the jury resolved the basic credibility dispute against

defendant and would have convicted the defendant of any of the various offenses

shown by the evidence to have been committed” (citation omitted)). This Court

summarily affirmed Neels’s convictions in 2017.

[¶7.] In 2018, Neels filed an amended application for a writ of habeas corpus

alleging that his rights to due process and effective assistance of counsel were

violated based upon two grounds: (1) trial counsel’s failure to object to the

prosecution’s opening statement that invited the jurors to step into the shoes of the

victim; and (2) trial counsel’s failure to request a jury instruction on unanimity.

After the habeas court entered a provisional writ of habeas corpus, the State filed a

motion for summary judgment arguing that Neels’s claims were precluded under

the doctrine of res judicata because this Court summarily affirmed Neels’s

convictions on direct appeal. Neels objected, asserting that res judicata did not

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apply because the prejudice inquiry under plain error review is not the same as the

prejudice inquiry under the ineffective assistance of counsel analysis. Neels further

alleged that he was prejudiced by his trial counsel’s failures because his appellate

counsel was left with the “more onerous burden to establish plain error on appeal

which compromised the effect of the error for evaluation by the South Dakota

Supreme Court[.]” He submitted affidavits from his two trial attorneys stating that

the failure to object to the prosecutor’s opening statement and the failure to propose

a unanimity instruction were not decisions made as part of a trial strategy.

[¶8.] The habeas court took judicial notice of the underlying criminal file,

considered the affidavits from Neels’s trial and appellate counsel, and considered

the language contained in this Court’s summary affirmance. The court noted, in

regard to the prosecutor’s opening statement, that because this Court’s summary

order referred to the statement as improper but then specifically ruled it did not

result in a due process violation, Neels could not establish a constitutional violation

of his right to effective assistance of counsel on habeas. The habeas court further

concluded that the plain error standard of review encompasses the same prejudice

inquiry required under Strickland for an ineffective assistance of counsel claim.

Therefore, the court determined that this Court’s denial of relief on direct appeal on

both the improper argument and lack of a unanimity instruction barred further

consideration of these claims on habeas under the doctrine of res judicata.

[¶9.] Although the habeas court dismissed Neels’s amended application for a

writ of habeas corpus, it issued a certificate of probable cause identifying the

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following two appealable issues arising from the court’s determination that res

judicata barred Neels’s claims for habeas relief:

1. Whether under the circumstances of this case, and where
prejudice from plain error was held not present on direct
appeal, the petitioner is precluded from demonstrating
prejudice for Strickland purposes in a subsequent habeas
corpus proceeding.

2. Whether genuine issues of material fact exist in this case
which preclude imposition of summary judgment in favor
of the State as a matter of law.

Standard of Review

[¶10.] “A habeas corpus applicant has the initial burden of proof to establish

a colorable claim for relief.” Jenner v. Dooley, 1999 S.D. 20, ¶ 11, 590 N.W.2d 463,

468. However, “[h]abeas corpus is not a substitute for direct review.” Loop v. Class,

1996 S.D. 107, ¶ 11, 554 N.W.2d 189, 191 (citation omitted). Rather, “[h]abeas

corpus can be used only to review (1) whether the court had jurisdiction of the crime

and the person of the defendant; (2) whether the sentence was authorized by law;

and (3) in certain cases whether an incarcerated defendant has been deprived of

basic constitutional rights.” Id. (citation omitted). Ordinarily, we review a habeas

court’s findings of fact for clear error, see Jenner, 1999 S.D. 20, ¶ 11, 590 N.W.2d at

468, but here the habeas court granted the State’s motion for summary judgment as

a matter of law. Therefore, our review is de novo. See Reutter v. Meierhenry, 405

N.W.2d 627, 630 (S.D. 1987) (recognizing that the rules governing summary

judgment apply in habeas proceedings).

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Analysis and Decision

1. Whether under the circumstances of this case, and
where prejudice from plain error was held not
present on direct appeal, the petitioner is precluded
from demonstrating prejudice for Strickland
purposes in a subsequent habeas corpus proceeding.

[¶11.] Neels initially challenges the habeas court’s determination that

because this Court had denied him relief on direct appeal under plain error review

for the same alleged errors underlying his ineffective assistance of counsel claims,

res judicata precludes consideration of these claims on habeas. It is well settled

that “[a] habeas court cannot [ ] review issues previously decided by this Court on

direct appeal.” Lodermeier v. Class, 1996 S.D. 134, ¶ 24, 555 N.W.2d 618, 626. This

is because “[t]he doctrine of res judicata disallows reconsidering an issue that was

actually litigated or that could have been raised and decided in a prior action.”

Legrand v. Weber, 2014 S.D. 71, ¶ 28, 855 N.W.2d 121, 129 (quoting Ramos v.

Weber, 2000 S.D. 111, ¶ 8, 616 N.W.2d 88, 91).

[¶12.] According to Neels, res judicata does not apply here because this Court

did not, on direct appeal, decide the prejudice question he presents in his habeas

petition, i.e., whether trial counsel’s failure to preserve issues at trial prejudiced his

substantial rights because the errors he alleged were subjected to a more onerous

standard of review on direct appeal. While this Court did not examine on direct

appeal the precise argument Neels is making here, his ineffective assistance of

counsel claim and corresponding request for a new trial based upon such an

argument is untenable.

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[¶13.] Under Strickland, “the ultimate focus of inquiry must be on the

fundamental fairness of the proceeding whose result is being challenged.” 466 U.S.

at 696, 104 S. Ct. at 2069 (emphasis added). “[T]he court should be concerned with

whether, despite the strong presumption of reliability, the result of the particular

proceeding is unreliable because of a breakdown in the adversarial process that our

system counts on to produce just results.” Id. (emphasis added). As the Eleventh

Circuit Court of Appeals explained, “The Supreme Court in Strickland told us that

when the claimed error of counsel occurred at the guilt stage of a trial (instead of on

appeal) we are to gauge prejudice against the outcome of the trial: whether there is

a reasonable probability of a different result at trial, not on appeal.” Purvis v.

Crosby, 451 F.3d 734, 739 (11th Cir. 2006). Thus, the controlling inquiry under

Strickland is whether the error on the part of trial counsel “undermined confidence

in the outcome of the trial,” and not “whether trial counsel’s error resulted in an

unfavorable standard of review on appeal.” See United States v. Busch, 411 Fed.

Appx. 872, 877 n.4 (6th Cir. 2011).

[¶14.] Nevertheless, Neels further asserts that res judicata does not apply on

habeas because this Court’s plain error review on direct appeal focused on the

alleged errors by the prosecutor and the trial court, whereas the habeas court’s

review under Strickland would focus on errors by trial counsel. Neels is correct in

his recognition that there is a difference between plain error review and an analysis

of an ineffective assistance of counsel claim. As this Court explained in State v.

Wilson:

Plain error review by appellate courts is used “to correct only
particularly egregious errors” by a trial court. By comparison,

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the ineffective assistance inquiry . . . does not involve the
correction of an error by the district court, but focuses more
broadly on the duty of counsel to raise critical issues for that
court’s consideration.

2020 S.D. 41, ¶ 28, 947 N.W.2d 131, 139 (quoting United States v. Carthorne, 878

F.3d 458, 465 (4th Cir. 2017)). However, that difference does not resolve the more

pertinent question: whether the prejudice inquiry attendant to plain error review is

the same prejudice inquiry applied to a claim of ineffective assistance of counsel,

such that a failure to prove prejudice on plain error review precludes a petitioner

from demonstrating prejudice for purposes of Strickland on habeas for the same

underlying trial errors. 2

[¶15.] This Court has not before examined the interplay between the required

showing of prejudice under Strickland and that which must be shown under plain

error review. However, a review of the United States Supreme Court’s treatment of

the two prejudice inquiries reveals that the showing of prejudice under Strickland is

the same as that required to establish prejudice under plain error review. Under

2. The State contends that this case is controlled by Steichen v. Weber (Steichen
II), 2009 S.D. 4, ¶ 7, 760 N.W.2d 381, 387. In particular, the State focuses on
the language in Steichen II that a petitioner’s burden on habeas “is much
greater than that required on direct appeal and is even greater than the
showing of plain error on direct appeal.” Id. (quoting Loop, 1996 S.D. 107, ¶
23, 554 N.W.2d at 193 (discussing whether an evidentiary question rises to
the level of a constitutional violation)). This quoted language from Steichen
II did not address an ineffective assistance of counsel claim. Rather, it
explained the petitioner’s burden of establishing a violation of due process on
habeas related to the circuit court’s admission of other acts evidence offered
by the State. See id. Although Steichen II also involved a claim of ineffective
assistance of counsel, the claim related to matters not at issue on direct
appeal. See id. ¶ 22, 760 N.W.2d at 392. Steichen II did not address the
question raised here—whether a prejudice inquiry on plain error review is
the same as a prejudice inquiry under Strickland.

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Strickland, the United States Supreme Court held that prejudice requires a

showing of “a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” 466 U.S. at 694, 104 S. Ct.

at 2068. “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. To establish prejudice under plain error review,

which requires a showing that the error affected the defendant’s substantial rights,

the United States Supreme Court explained that an effect on substantial rights “in

most cases . . . means that the error must have been prejudicial: It must have

affected the outcome of the district court proceedings.” United States v. Olano, 507

U.S. 725, 734, 113 S. Ct. 1770, 1777–78, 123 L. Ed. 2d 508 (1993).

[¶16.] The United States Supreme Court later held that except for “certain

structural errors undermining the fairness of a criminal proceeding as a whole,” the

showing of prejudice required to establish an effect on substantial rights is the same

as that required in other contexts where the burden of demonstrating prejudice is

on the defendant seeking relief and requires a showing of a prejudicial effect on the

outcome of the proceeding. 3 United States v. Dominguez Benitez, 542 U.S. 74, 81–

82, 124 S. Ct. 2333, 2339, 159 L. Ed. 2d 157 (2004). After so concluding, the Court

applied the same prejudice inquiry on plain error review as that employed in

3. Other courts have likewise determined that “[t]he standard for prejudice
under Strickland is virtually identical to the showing required to establish
that a defendant’s substantial rights were affected under plain error
analysis.” Becht v. United States, 403 F.3d 541, 549 (8th Cir. 2005); see also
Close v. United States, 679 F.3d 714, 720 (8th Cir. 2012); Gordon v. United
States, 518 F.3d 1291, 1300 (11th Cir. 2008); United States v. Feldman, 793
Fed. Appx. 170, 173 n.2 (4th Cir. 2019) (noting that although plain error
review and review of an ineffective assistance claim are not the same, the two
overlap on the prejudice inquiry).

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Strickland—“a reasonable probability that, but for [the error claimed], the result of

the proceeding would have been different.” Id. (alteration in original) (citation

omitted); see also Geer v. United States, ___ U.S. ___, 141 S. Ct. 2090, 2096, 210 L.

Ed. 2d 121 (2021) (explaining that an error affecting substantial rights “generally

means that there must be ‘a reasonable probability that, but for the error, the

outcome of the proceeding would have been different’” (citation omitted)). We have

likewise applied the same prejudice inquiry on plain error review. See State v.

Fifteen Impounded Cats, 2010 S.D. 50, ¶ 33, 785 N.W.2d 272, 283.

[¶17.] The habeas court properly determined that the prejudice showing

under plain error review is the same as that which must be shown to prove

prejudice under Strickland for an ineffective assistance of counsel claim related to

the same underlying trial errors. The court also correctly concluded that a finding

on direct appeal that a defendant did not show prejudice under plain error review

would preclude a finding of prejudice by a habeas court reviewing the same trial

record with respect to the same alleged error. Whether the court properly

determined that this Court’s denial of relief on direct appeal is res judicata barring

review of Neels’s particular ineffective assistance of counsel claims on habeas is

addressed in the analysis of the second question identified in the certificate of

probable cause.

2. Whether genuine issues of material fact exist in this
case which preclude imposition of summary
judgment in favor of the State as a matter of law.

[¶18.] According to Neels, even if the prejudice inquiries under plain error

review and review of an ineffective assistance claim are the same, the doctrine of

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res judicata does not bar his current habeas claims. He asserts that it cannot be

determined as a matter of law that this Court concluded on direct appeal that he

was or was not prejudiced by the alleged trial errors. He notes that this Court’s

summary order does not identify whether the Court found no prejudice before it

declined to grant relief, or whether the Court instead declined to exercise its

discretion to grant relief under the more stringent plain error standard of review,

notwithstanding a finding of prejudice. Therefore, he contends that material issues

of fact are in dispute as to the basis for this Court’s denial of relief on direct appeal.

On the contrary, the question Neels raises is better characterized as a question of

law, i.e., whether this Court’s summary order denying relief on direct appeal under

plain error review has a preclusive effect on Neels’s ineffective assistance of counsel

claims on habeas arising out of the same underlying trial errors.

[¶19.] “To establish plain error, [a defendant] must show: ‘(1) error, (2) that is

plain, (3) affecting substantial rights; and only then may this Court exercise its

discretion to notice error if, (4) it seriously affects the fairness, integrity, or public

reputation of judicial proceedings.’” State v. McMillen, 2019 S.D. 40, ¶ 13, 931

N.W.2d 725, 729–30 (citation omitted). According to the United States Supreme

Court, “[t]he fourth prong is meant to be applied on a case-specific and fact-

intensive basis.” Puckett v. United States, 556 U.S. 129, 142, 129 S. Ct. 1423, 1433,

173 L. Ed. 2d 266 (2009). Further, this Court has repeatedly said that “[w]e invoke

our discretion under the plain error rule cautiously and only in ‘exceptional

circumstances.’” McMillen, 2019 S.D. 40, ¶ 13, 931 N.W.2d at 729 (quoting State v.

Bariteau, 2016 S.D. 57, ¶ 23, 884 N.W.2d 169, 173).

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[¶20.] Therefore, although the prejudice inquiry on plain error review is the

same as that applied to an ineffective assistance of counsel claim, this alone does

not mean that in all cases a denial of relief on direct appeal under plain error

review bars a defendant from obtaining review on habeas of a claim of ineffective

assistance of counsel related to the same underlying errors. Though rare, there

may be instances in which this Court denies relief based on a failure to meet the

more stringent fourth prong. See Deck v. State, 68 S.W.3d 418, 428 (Mo. 2002)

(“[A]s Strickland recognized[,] this theoretical difference in the two standards of

review will seldom cause a court to grant post-conviction relief after it has denied

relief on direct appeal[.]” (citation omitted)); 4 see also Ex parte Taylor, 10 So. 3d

1075, 1078 (Ala. 2005) (the mere denial of relief on plain error review will not

automatically foreclose review of an ineffective assistance of counsel claim).

However, when a denial of relief on direct appeal under plain error review occurred

because the defendant failed to establish error or prejudice, res judicata applies

against a subsequent ineffective assistance claim arising out of the same underlying

trial error.

[¶21.] To determine whether the habeas court properly concluded that res

judicata applies here, we must review the specific grounds underlying Neels’s

4. While Missouri’s plain error test is not identical to this Court’s, Missouri
requires a showing that “the error so substantially affected [the defendant’s]
rights that a manifest injustice or a miscarriage of justice would result were
the error left uncorrected.” Id. at 424 (emphasis added). This language more
closely aligns with this Court’s discussion of scenarios that would meet our
fourth prong of plain error review, and as the Missouri court observed, a lack
of manifest injustice does not equate to a finding of no prejudice for the
purpose of Strickland. See id. at 427.

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claims of ineffective assistance of counsel and the language of this Court’s summary

affirmance order on direct appeal.

a. The Prosecutor’s Opening Statement

[¶22.] The language of this Court’s summary order indicates that we

“considered all of the briefs filed in the above-entitled matter, and in light of the

record in this case,” concluded that “Neels has not met his burden that the state’s

improper opening statement so infected his trial that his conviction violates due

process.” 5 (Emphasis added.) Although the language of the order reflects that this

Court found the prosecutor’s opening statement to be improper (error or plain

error), by concluding that the improper statement did not violate Neels’s right to

due process, Neels cannot establish on habeas that his trial counsel’s performance

resulted in an unreliable outcome. As the United States Supreme Court has

explained, “Unreliability or unfairness does not result if the ineffectiveness of

counsel does not deprive the defendant of any substantive or procedural right to

which the law entitles him.” Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S. Ct. 838,

844, 122 L. Ed. 2d 180 (1993). Because a finding of prejudice on habeas review

5. The italicized language appears in a discussion of the fourth prong of plain
error review in State v. Mulligan, 2007 S.D. 67, ¶ 27, 736 N.W.2d 808, 818.
However, in relating this language, the Court in Mulligan cited a case that
applied the same language in examining the third prong of plain error
review. Id. (quoting United States v. Bamberg, 478 F.3d 934, 939 (8th Cir.
2007)). A review of Bamberg and other cases reveals that the question
whether an error so infected the trial that a conviction violates due process
pertains to a review of prejudice under the third prong of plain error review.
See Bamberg, 478 F.3d at 939; United States v. Smith, 450 F.3d 856, 859 (8th
Cir. 2006) (describing the due process determination in terms of a prejudice
inquiry prior to applying Olano’s fourth prong); United States v. Falcon, 477
F.3d 573, 577 (8th Cir. 2007) (same).

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would be inconsistent with this Court’s ruling on direct appeal, the habeas court

properly determined that res judicata precludes relief on this first ground upon

which Neels alleged ineffective assistance of counsel.

b. The Lack of a Unanimity Instruction

[¶23.] This Court’s summary order disposed of Neels’s remaining issues on

direct appeal, including the lack of a unanimity instruction, by quoting the

statutory grounds under which a summary affirmance may be issued pursuant to

SDCL 15-26A-87.1(A). The order provided “that it is manifest on the face of the

briefs and the record that the appeal is without merit on the following grounds: 1.

that the issues on appeal are clearly controlled by settled South Dakota law or

federal law binding upon the states, 2. that the issues on appeal are factual and

there clearly is sufficient evidence to support the verdict, and 3. that the issues on

appeal are ones of judicial discretion and there clearly was not an abuse of

discretion.” See id.

[¶24.] Although the summary order does not identify under which prong of

plain error review this Court denied Neels relief on the unanimity issue, we reject

Neels’s suggestion that the summary order allows for the possibility that this Court

found error and prejudice but nevertheless declined to exercise its discretion to

grant relief after a determination that the fourth prong of plain error review had

not been met. The language in the order reflects that the Court found the

unanimity issue to be “without merit” because the issue was “clearly controlled by

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settled South Dakota law[.]” 6 In making this determination, the Court necessarily

found either no error or no prejudice. 7 In comparison, a decision by the Court to

affirm despite a finding of plain error and prejudice would involve the exercise of

this Court’s discretion to deny relief when the more stringent fourth prong of plain

error review has not been met. 8 Such a decision could not be aptly characterized as

a decision “clearly controlled by settled law.” Moreover, although this Court could

decline relief after concluding there was an obvious and prejudicial error, we could

not at the same time deem the issue on appeal to be without merit.

[¶25.] Of final note, the prejudice inquiry stemming from the error alleged

here—counsel’s failure to request a unanimity instruction—implicates the same

prejudice inquiry that would have been undertaken on direct appeal in the event

the lack of a unanimity instruction was determined to be plain error. Even if

6. The first statutory ground from SDCL 15-26A-87.1(A) could encompass both
the error and prejudice prongs relating to the unanimity issue. The other
statutory grounds quoted in the summary order regarding sufficiency of the
evidence and matters over which a trial court has exercised discretion would
have been more pertinent to the additional claims raised by Neels on direct
appeal.

7. A determination that this Court resolved the unanimity issue in this manner
aligns with the parties’ briefs filed in Neels’s direct appeal. Although both
parties’ briefs recited the four prongs of plain error review, their arguments
focused only on the first and third prongs regarding whether there was error
or prejudice.

8. When addressing the fourth prong of plain error review, which guides the
exercise of an appellate court’s discretion, the United States Supreme Court
counseled that a court “should correct a plain forfeited error affecting
substantial rights if the error ‘seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.’” Olano, 507 U.S. at 736, 113 S. Ct.
at 1779 (emphasis added) (quoting United States v. Atkinson, 297 U.S. 157,
160, 56 S. Ct. 391, 392, 80 L. Ed. 555 (1936)); accord Rosales-Mireles v.
United States, 138 S. Ct. 1897, 1906, 201 L. Ed. 2d 376 (2018).

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counsel’s performance is deemed deficient under Strickland standards, the

accompanying prejudice determination would rest upon an examination of the

existing trial record, i.e., the counts submitted to the jury in light of the evidence

presented and arguments made, in conjunction with the jury instructions actually

given. Because a review of the prejudicial effect of the lack of a unanimity

instruction, whether it be on direct appeal or on habeas, is identical, this Court’s

denial of relief on direct appeal by summary order under SDCL 15-26A-87.1(A)(1) is

res judicata, precluding Neels from raising a subsequent claim on habeas arising

out of the same underlying trial error. 9 Therefore, the habeas court properly

dismissed Neels’s amended application for a writ of habeas corpus on summary

judgment.

[¶26.] Affirmed.

[¶27.] JENSEN, Chief Justice, and SALTER, Justice, and GILBERTSON,

Retired Chief Justice, concur.

[¶28.] KERN, Justice, concurs in part and dissents in part.

[¶29.] MYREN, Justice, not having been a member of the Court at the time

this action was submitted to the Court, did not participate.

9. SDCL 15-26A-87.1(E) provides in relevant part that the Court’s summary
dispositions “shall not be cited or relied upon as authority in any litigation in
any court in South Dakota except when the decision establishes the law of
the case, res judicata or collateral estoppel[.]”

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KERN, Justice (concurring in part and dissenting in part).

[¶30.] In Neels’s direct appeal on the issue of a lack of a unanimity

instruction, this Court summarily affirmed Neels’s conviction, reasoning only “that

it is manifest on the face of the briefs and the record that the appeal is without

merit on the following grounds: 1. that the issues on appeal are clearly controlled by

settled South Dakota law or federal law binding upon the states, 2. that the issues

on appeal are factual and there clearly is sufficient evidence to support the verdict,

and 3. that the issues on appeal are ones of judicial discretion and there clearly was

not an abuse of discretion.” Because I do not agree that the unanimity instruction

issue in Neels’s current habeas corpus petition is precluded by this language under

the doctrine of res judicata, I respectfully dissent as to this issue.

[¶31.] Our doctrine of res judicata includes two concepts: issue preclusion and

claim preclusion. Piper v. Young, 2019 S.D. 65, ¶ 22, 936 N.W.2d 793, 804. Only

issue preclusion is relevant here, and issue preclusion may only foreclose

relitigation of matters that have already been “litigated and decided.” Id. (emphasis

added) (citation omitted). The majority opinion infers from the summary

affirmance language quoted above that this Court either found no error or no

prejudice in Neels’s direct appeal arising from the lack of a unanimity instruction.

The majority opinion then determines that the issue of prejudice is precluded in this

habeas action based on that inference. What is lacking in Neels’s direct appeal,

however, is a decision from this Court on the issue of prejudice—without that, the

issue of prejudice in Neels’s habeas petition arising from the lack of a unanimity

instruction is not properly precluded under the doctrine of res judicata.

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[¶32.] The writ of habeas corpus is the last line of defense within our state

judicial system against deprivations of basic constitutional rights in criminal

matters. When, on direct appeal, this Court declines to specifically address a

defendant’s claims in a written opinion, or in a summary order, it creates

uncertainty as to the preclusive effect of the direct appeal on a subsequent habeas

petition alleging ineffective assistance of counsel. For this reason, res judicata

should be applied to habeas corpus petitions in only the clearest of circumstances by

this Court—not based on a summary conclusion in an order of affirmance.

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