87
th Legislative Session _ 2012
Committee: Senate Judiciary
Thursday, January 19, 2012
P - Present
E - Excused
A - Absent
Roll Call
P Tieszen, Chair
P Begalka
P Nygaard
P Vehle
P Buhl
P Hunhoff (Jean)
E Cutler, Vice-Chair
OTHERS PRESENT: See Original Minutes
The meeting was called to order by Senator Craig Tieszen, Chair.
MOTION: TO APPROVE THE MINUTES OF THURSDAY, JANUARY 12, 2012
Moved by: Begalka
Second by: Buhl
Action: Prevailed by voice vote.
SB 42: revise certain provisions regarding habeas corpus.
Presented by: Marty Jackley, Office of the Attorney General
Proponents: Paul Bachand, SD State's Attorneys Association
Ken Davis, Pennington County
Ed Schaeffer, self, Black Hawk
Peggy Schaeffer, self, Black Hawk
Bob Wilcox, SD Association of County Commissioners
Opponents: Lindsey Riter-Rapp, SD Association Criminal Defense Lawyers
Steve Miller, self, Sioux Falls
MOTION: AMEND SB 42
42ra
On page 2, line 4, of the printed bill, delete "one-year" and insert "two-year".
On page 3, line 15, delete "presented" and insert "decided on the merits".
Moved by: Nygaard
Second by: Buhl
Action: Was not acted on.
MOTION: SUBSTITUTE MOTION AMEND SB 42
42rc
On page 2, line 4, of the printed bill, delete "one-year" and insert "two-year".
Moved by: Vehle
Second by: Hunhoff (Jean)
Action: Prevailed by roll call vote. (5-1-1-0)
Voting Yes: Tieszen, Nygaard, Vehle, Buhl, Hunhoff (Jean)
Voting No: Begalka
Excused: Cutler
MOTION: AMEND SB 42
42rb
On page 2, line 4, of the printed bill, delete "by a".
On page 2, delete line 5.
On page 2, line 6, delete "or the United States".
On page 2, line 9, delete "under this chapter".
On page 2, line 12, delete "under this".
On page 2, line 13, delete "chapter".
On page 2, delete lines 18 to 20, inclusive.
On page 3, line 2, delete "shall may" and insert "shall".
On page 3, line 7, delete everything after "." .
On page 3, delete line 8.
On page 3, line 9, delete everything before "The" .
On page 3, line 10, after "counsel" insert ", whether retained or appointed,".
On page 3, after line 16, insert:
"
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 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, 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.
Section 6. That § 21-27-16.1 be repealed.
21-27-16.1. All grounds for relief available to a petitioner under this chapter shall be raised in
his original, supplemental or amended application. Any ground not raised, finally adjudicated or
knowingly and understandingly waived in the proceedings resulting in his conviction or sentence or
in any other proceeding that the applicant has taken to secure relief from his conviction, or sentence,
may not be the basis for a subsequent application, unless the court finds grounds for relief asserted
which for reasonable cause were omitted or inadequately raised in the original, supplemental, or
amended application. ".
Moved by: Hunhoff (Jean)
Second by: Begalka
Action: Prevailed by roll call vote. (4-2-1-0)
Voting Yes: Tieszen, Begalka, Vehle, Hunhoff (Jean)
Voting No: Nygaard, Buhl
Excused: Cutler
MOTION: DO PASS SB 42 AS AMENDED
Moved by: Hunhoff (Jean)
Second by: Vehle
Action: Prevailed by roll call vote. (5-1-1-0)
Voting Yes: Tieszen, Begalka, Nygaard, Vehle, Hunhoff (Jean)
Voting No: Buhl
Excused: Cutler
MOTION: CONFIRM APPOINTMENT OF DENNIS KAEMINGK OF DAVISON COUNTY,
MITCHELL, SOUTH DAKOTA, TO THE POSITION OF SECRETARY OF THE
DEPARTMENT OF CORRECTIONS
Presented by: Jim Seward, Department of Corrections
Dennis Kaemingk, Department of Corrections
Moved by: Vehle
Second by: Nygaard
Action: Prevailed by roll call vote. (6-0-1-0)
Voting Yes: Tieszen, Begalka, Nygaard, Vehle, Buhl, Hunhoff (Jean)
Excused: Cutler
THE CHAIR DEFERRED SB 39,
SB 41, and
SB 43 UNTIL TUESDAY, JANUARY 24, 2012
MOTION: ADJOURN
Moved by: Vehle
Second by: Buhl
Action: Prevailed by voice vote.
Rena Ortbahn
____________________________
Committee Secretary
Craig Tieszen, Chair
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