State of South Dakota  

400T0427   HOUSE JUDICIARY ENGROSSED    NO.  SB 42 -  2/15/2012  

Introduced by:    The Committee on Judiciary at the request of the Office of the Attorney General

        FOR AN ACT ENTITLED, An Act to revise certain provisions regarding habeas corpus and to declare an emergency.
    Section 1. That § 21-27-3.1 be amended to read as follows:
    21-27-3.1. An application for relief Proceedings under this chapter may be filed at any time except that proceedings thereunder cannot be maintained while an appeal from the applicant's conviction and sentence is pending or during the time within which such appeal may be perfected.
    Section 2. That § 21-27-3.2 be repealed.
    21-27-3.2. An application under this chapter may be dismissed if it appears that the state or the applicant's custodian has been prejudiced in its ability to respond to the application by delay in its filing, unless the applicant shows that the application is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances causing the prejudice occurred. It shall be presumed that the state or the applicant's custodian

has been prejudiced if the application is filed more than five years after signing, attestation and filing of the judgment or order under which the applicant is held. This presumption is rebuttable pursuant to § 19-11-1.
    Section 3. That chapter 21-27 be amended by adding thereto a NEW SECTION to read as follows:

    A two-year statute of limitation applies to all applications for relief under this chapter. This limitation period shall run from the latest of:
            (1)    The date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
            (2)    The date on which the impediment to filing an application created by state action in violation of the constitution or laws of the United States or of this state is removed, if such impediment prevented the applicant from filing;
            (3)    The date on which the constitutional right asserted in the application was initially recognized by the Supreme Court of the United States or the Supreme Court of this state if the right has both been newly recognized and is retroactively applicable to cases on collateral review; or
            (4)    The date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
    Section 4. That § 21-27-4 be amended to read as follows:
    21-27-4. If a person has been committed, detained, imprisoned, or restrained of his liberty, under any color or pretense whatever, civil or criminal, and if upon application made in good faith to the court or judge thereof, having jurisdiction, for a writ of habeas corpus, it is satisfactorily shown that the person is without means to prosecute the proceeding, the court or judge shall, if the judge finds that such appointment is necessary to ensure a full, fair, and

impartial proceeding, appoint counsel for the indigent person pursuant to chapter 23A-40. Such counsel fees or expenses shall be a charge against and be paid by the county from which the person was committed, or for which the person is held as determined by the court. Payment of all such fees or expenses shall be made only upon written order of the court or judge issuing the writ. The ineffectiveness or incompetence of counsel, whether retained or appointed, during any collateral post-conviction proceeding is not grounds for relief under this chapter.
    Section 5. That chapter 21-27 be amended by adding thereto a NEW SECTION to read as follows:

    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 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.
    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.
    Section 7.  Whereas, this Act is necessary for the immediate preservation of the public peace, health, or safety, an emergency is hereby declared to exist, and this Act shall be in full force and effect from and after its passage and approval.