*1 SWEENEY, Petitioner H. John Appellant, LEAPLEY, Warden of South
Walter Penitentiary, Appellee.
Dakota State
No. 17475. of South Dakota. on Briefs Oct. 1991.
Considered July
Decided 1992.
Gregg Boyce, Murphy S. Greenfield Greenfield, Palls, McDowell & Sioux petitioner appellant. Barnett, Gen., Atty. Bogue,
Mark Scott Gen., Pierre, Atty. appellee. Asst. Judge. Sweeney (Sweeney) appeals John H. from an order We reverse and remand. 12, 1981, Sweeney was
On November in an incident at the home of Eu- involved Falls, Da- gene Rufener near Sioux South 18, 1981, Sweeney kota. On November charges of by grand jury was indicted ag- degree burglary, kidnapping, two first assaults, of a fel- gravated and commission a firearm. The state ony while armed with information. also filed an habitual offender 23, 1981, Sweeney was ar- November however, raigned; transcript is avail- Sweeney received court able. made Discovery motions were ruled. The court also upon which the court psychiatric examination of Swee- ordered Kennedy, ney. April Dr. D.J. opinion that psychiatrist, rendered his trial. competent to stand signed April Also on waiver, to enter kidnapping, all oth- pleading guilty to with charges as the habitual offender er as well being dismissed. On information impris- life Sweeney was sentenced to onment. *2 20, 1989, Sweeney applied appear application a for it shall the from corpus alleging that any
writ of habeas his document annexed itself from knowingly, intelligent- thereto, applicant was not that the can neither be voluntarily bail, the discharged entered and that nor admitted to nor in relieved, a trial court failed to establish factual basis (emphasis other manner Kean, guilty plea. Judge by letter for his supplied). 4, 1989, May applica- the dated forwarded the If court determines that the writ public tion defender’s granted should not be then this is an representation. office for A court pursuant issue pealable to SDCL 21-27- Titze, attorney, provided A. Drake was If the 18.1. court decides that the writ January Sweeney. By for letter dated granted should be then the state files its Sweeney that his al- Titze advised pursuant return to SDCL 21-27-9.3 and the leged grounds corpus for relief had habeas hearing time disposi- court sets a for legal foundation and that the issues pursuant tion to SDCL 21-27-12 and 21- alleged illusory. copyA of this letter were 27-14. This is when the court considers sent to Kean. An order dated was the merits signed by Judge
January
was
denying Sweeney’s request
determining
for a
Kean
When
the merits of
corpus. Judge
application,
Kean relied sole-
granting
of habeas
the
the
of a
is
ly upon
Solem,
letter from
mandatory.
the “no-merit”
Swee- not
Clothier v.
ney’s attorney
denying
application
(S.D.1989)
pro
N.W.2d
this
corpus. By
for a writ of habeas
letter
“the rule is
vided:
well established that the
February
Judge Kean ad-
dated
application
on an
that his
for a writ
vised
corpus
only if
writ of habeas
arises
corpus
hearing upon
or a
of habeas
which,
true,
application sets forth facts
relief,
application
was denied
enclosed a
applicant
would entitle the
[cita
of his order.
evidentiary hearing
A full
tions omitted].
is unwarranted where no substantial factu
February
Judge Kean
is-
corpus
al issues exist.”
habeas
is
probable
sued a limited certificate of
cause.
proceeding
subject
a
a
civil
to motion
8, 1991, Judge
On March
Kean issued an
summary judgment.
Reutter v. Meier
denying Sweeney’s request
amended order
(S.D.1987).
henry,
N.W.2d
corpus stating
that the
habeas
hearing. Sweeney,
was denied without a
Sweeney’s
denial
with new court
now
corpus
application for a writ of habeas
application
peals Judge Kean’s denial of his
erroneously based. The refusal to award
for a writ of habeas
judge’s
the writ must be based on the
The issue in this case is whether or not
application
examination of the
itself or
the trial court committed error in
from
document annexed thereto.
Sweeney’s application for a writ of habeas
cannot be based on a “no merit” letter
corpus
solely upon
attorney’s
based
his
goes
appli
because this
to the merits of the
“no-merit” letter. We feel the answer is
application
cation and not to whether the
yes.
deficient on its face.
application
to statute an
Pursuant
Regarding
the “no-merit”
separate
relief involves
two
upon.
dure should be settled
In Anders v.
The first
determinations.
determination is
738, 744-745,
California, 386 U.S.
whether writ of habeas
(1967),
498-99
The second determination is
awarded.
sought
the United States
Court
whether
has
procedure
out
to be followed when an
provides:
SDCL 21-27-5
attorney appointed
represent
judge
applica-
appeals
The court or
to whom the
defendant on direct
finds a case
made,
tion for a writ of habeas
frivolous. The United States Su-
writ,
preme
provided
shall
award the
unless
as follows:
forthwith
constantly
increasing charge
constitutional
sub-
that he was
equality
stantial
and fair
can
ineffective and had not handled the case
diligence
be attained where counsel acts in
with that
to which an indigent
the role of an
is entitled.
active advocate
behalf of
client,
opposed
penniless
will assure
to that of amicus
defendants
*3
rights
opportunities
same
pro-
curiae. The no-merit letter and the
on
peal
nearly
practicable
as is
triggers
digni-
cedure it
are
do not reach that
—as
—as
enjoyed
should,
persons
those
ty.
who are in a
and can with honor
Counsel
similar situation
conflict,
but who are
to
able
af-
without
be more assist-
private
ford the retention of
ance to his client and to the court. His
requires
support
role as advocate
that he
stated,
As
Anders dealt with a direct
appeal
his client’s
to the best of his abili- appeal, not
actions.
ty.
course,
Of
if counsel finds his case Pennsylvania
Finley,
481 U.S.
frivolous,
wholly
to be
after a consci-
the United
it,
entious examination of
he should so
Supreme
States
Court addressed whether
request permission
advise
court and
applicable
Anders is
to writs of habeas
must,
to withdraw. That
how- corpus
post-conviction
or
proceedings. The
ever,
accompanied by
referring
a brief
Supreme
United States
court held that the
anything in
might
to
the record that
ar-
requirements prescribed in Anders with
guably support
appeal.
A
attorney
which an
must meet to withdraw
counsel’s brief should be furnished the
from representing
indigent
an
defendant
indigent and time allowed him to raise
appeal,
on a direct
have no
chooses;
any points that he
the court— post-conviction proceeding.
In Finley, the
proceeds,
not counsel—then
after a full
defendant
degree
was convicted of second
proceedings,
examination of all the
to
Pennsylvania Supreme
murder. The
decide whether the case is
friv-
appeal.
affirmed the
on
may
olous. If it
grant
so finds it
coun-
subsequent post-conviction proceeding, the
sel’s
to withdraw and dismiss the
required
state court
counsel as
appeal
requirements
insofar as federal
by state law.
trial
Counsel reviewed the
concerned,
are
to a decision record and
consulted with
defendant.
merits, if
requires.
on the
state
so
law
argu-
Counsel concluded that there were no
hand,
On the other
it finds
of the
According-
able basis for collateral relief.
legal points arguable
(and
on the merits
writing
the trial
counsel advised
frivolous) must, prior
therefore not
it
to
requested permission
of his conclusion and
decision,
afford the
the assist-
to withdraw. The trial court conducted an
argue
appeal.
ance of counsel to
independent
review of the record and
would not force
agreed that there were no issues even ar-
pointed
against
counsel to brief his case
guably meritorious. The court thus dis-
merely
client but would
afford the
post-conviction
missed the
re-
advocacy
nonindigent
latter that
which a
acquired
lief. The defendant
new
defendant
is able to obtain.
It would
pursued
appeal
to the
counsel and
pursue
also induce the court to
all the
superior court. That
that
court concluded
vigorously
its own review because
the conduct of the counsel in the trial court
ready
only
references not
to the
post-conviction proceedings violated the de-
record,
legal
also
but
authorities
rights, relying
fendant’s constitutional
as furnished it
counsel. The no-merit
supra.
California,
Anders v.
The United
hand,
on the other
affords neither
Supreme
stating
States
Court reversed
that
the client nor the court
aid. The prisoners
right
have no constitutional
former
entirely
must shift
for himself
mounting
counsel when
collateral attacks
while the court has
the cold record
upon their convictions. Neither does the
which it must
right
review without the
of presence of a state created
to counsel
Moreover,
an advocate.
handling
such
create a constitutional
protect
would tend
right.
counsel from the
had no constitu-
Since
C.J.,
MILLER,
tional
to counsel she could not be
SABERS and
AMUNDSON, JJ.,
deprived of
of counsel.
concur.
effective assistance
that
the defendant had received
HENDERSON,
J., specially concurring.
exactly that
entitled to receive
which she is
WUEST, J.,
Judge,
independent
under state
review of
law —an
disqualified.
by competent
the record
counsel —she can-
any deprivation
not claim
HENDERSON,
(specially
Justice
concur-
process.
ring).
Court also
United States
produced
There was no evidence
—and
provided:
nothing
reflecting
there is
in the record
bottom,
on a
At
the decision below rests
finding
Kean’s
basis
“...
unwilling
premise
that we are
to ac-
*4
upon
merit
there are no issues of
which to
cept
when a State chooses to offer
—that
base a
for a writ of habeas cor-
seeking
to those
relief from convic-
pus.”
Denying
The “Order
Petitioner’s Re-
tions,
the Federal Constitution dictates
quest
Corpus”
solely
for Habeas
is based
the exact form such assistance must as-
upon
petitioner’s
“Pursuant
to the letter of
contrary,
in this area
sume. On
“request”
counsel” the
is “DENIED in all
to de-
States have substantial discretion
respects.”
velop
implement programs
and
to aid
Post conviction counsel sat on
prisoners
seeking
postconvic-
to secure
for 2¾ n
years
and then wrote a “no-merit”
tion review.
During
year
Kean.
letter to
this 2V2
Pennsylvania
Finley, 481 U.S. at
v.
559,
hiatus,
taken
there was
action
ing necessary;
accordingly.