ENTITLED, An Act to revise certain provisions regarding habeas corpus.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. That § 21-27-3.1 be amended to read as follows:
21-27-3.1. Proceedings under this chapter 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
Section 2. That § 21-27-3.2 be repealed.
Section 3. That chapter 21-27 be amended by adding thereto a NEW SECTION to read as
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 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
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
(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.
An Act to revise certain provisions regarding habeas corpus.
I certify that the attached Act
originated in the
SENATE as Bill No. 42
Secretary of the Senate
President of the Senate
Secretary of the Senate
Speaker of the House
Senate Bill No. 42
File No. ____
Chapter No. ______
Received at this Executive Office
this _____ day of _____________ ,
20____ at ____________ M.
for the Governor
The attached Act is hereby
approved this ________ day of
______________ , A.D., 20___
STATE OF SOUTH DAKOTA,
Office of the Secretary of State
Filed ____________ , 20___
at _________ o'clock __ M.
Secretary of State
Asst. Secretary of State