Application of Novaock

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and South Dakota Continuing Legal Education, Inc.
222 East Capitol Ave.
Pierre, SD 57501-2596

IN THE MATTER OF THE
APPLICATION OF KURT A. NOVAOCK,
For a Writ of Habeas Corpus and Alternatively for a Writ of Error Coram Nobis

South Dakota Supreme Court
Appeal from the First Judicial Circuit, Douglas County, SD
Hon. Richard Bogue, Judge
#20036 -- Affirmed

Mark Barnett, Attorney General
Gary Campbell, Assistant Attorney General, Pierre, SD
Attorneys for Plaintiff and Appellee.

Gary W. Conklin, Galland Legal Clinic, Sioux Falls, SD
Attorneys for Defendant and Appellant.

Considered on Briefs Dec 3, 1997; Opinion Filed Jan 7, 1998

SABERS, Justice.

[¶1] Kurt Novaock appeals dismissal of his second petition for writ of habeas corpus and alternative writ of error coram nobis. We affirm.

FACTS

[¶2] Novaock and Lewis Ashker were indicted for the June 1985 murder of Jerry Plihal. Novaock was convicted of murder in the first degree while engaged in the felony of robbery or burglary under SDCL 22-16-4, which then provided:

Homicide is murder in the first degree when perpetrated without authority of law and with a premeditated design to effect the death of the person killed or of any other human being, or when committed by a person engaged in the perpetration of, or attempt to perpetrate, any arson, rape, robbery, burglary, kidnapping, or unlawful throwing, placing, or discharging of a destructive device or explosive.

This court affirmed his conviction on direct appeal. State v. Novaock, 414 NW2d 299 (SD 1987). Ashker was separately tried and convicted under the same statute and his conviction was also affirmed on direct appeal. State v. Ashker, 412 NW2d 97 (SD 1987) (Ashker I).

[¶3] Novaock's appeal of the denial of his first habeas petition was dismissed on jurisdictional grounds by order of this court on December 22, 1993. Notwithstanding the jurisdictional flaw of his appeal, this court noted:

[T]he Court having further determined after considering the arguments presented in the appeal briefs that if jurisdiction had been properly invoked, the Court would have affirmed the trial court, having found that appellant failed to establish that he was denied the effective assistance of counsel[.]

Order Dismissing Appeal #18280.

[¶4] As grounds for his latest petition for alternative writs of habeas corpus and error coram nobis, Novaock argues that the jury instruction pertaining to the felony murder statute was defective for failure to define the elements of robbery or burglary. The State "does not contest Novaock's claim that the jury instructions ... should have contained definitions of burglary and robbery," but argues that Novaock is procedurally barred from now raising this claim. Novaock concedes that this issue was not raised at trial, in his direct appeal, or in his first habeas petition, but claims that his failure to previously appeal the instruction is excusable and no bar to habeas relief.(fn1)  In the alternative, he argues he is entitled to relief under the writ of error coram nobis.

[¶5] Whether Novaock Has Shown Cause For His Omission Or Failure To Previously Raise These Grounds For Relief.

[¶6] This case is governed by SDCL 21-27-16.1, which provides:

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.

To avoid dismissal of a successive petition for habeas corpus relief, Novaock must show:

1. Cause for his omission or failure to previously raise the grounds for habeas relief; and

2. Actual prejudice resulting from the alleged constitutional violation.

Ashker v. Class, 534 NW2d 66, 67 (SD 1995) (Ashker III) (quoting Gregory v. Solem, 449 NW2d 827, 830 (SD 1989)). "The existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Id. at 68 (citation omitted).

[¶7] Novaock claims that prior to the United States Supreme Court case of United States v. Gaudin, 515 US 506, 115 SCt 2310, 132 LEd2d 444 (1995), "there would have been no reason for previous habeas counsel to present the issue of faulty instructions because harmless error analysis would have been used as a rationale for upholding the verdict." This argument fails for a number of reasons.

[¶8] In Gaudin, the district court ruled that the issue of materiality of a false statement was a matter for the court rather than the jury to decide. The Supreme Court affirmed the Court of Appeals for the Ninth Circuit's conclusion that the district court's refusal to submit the materiality question to the jury was unconstitutional. Here, the trial court did not withhold any question from the jury.

[¶9] Furthermore, the legal precepts upon which Gaudin is based are not novel and may have been used to support Novaock's jury instruction argument in his direct appeal or prior habeas petition. For example, Gaudin cites Sullivan v. Louisiana, 508 US 275, 113 SCt 2078, 124 LEd2d 182 (1993); County Court of Ulster Cty. v. Allen, 442 US 140, 99 SCt 2213, 60 LEd2d 777 (1979); Patterson v. New York, 432 US 197, 97 SCt 2319, 53 LEd2d 281 (1977); and In re Winship, 397 US 358, 90 SCt 1068, 25 LEd2d 368 (1970), for the proposition that

each [case] also confirms that the jury's constitutional responsibility is not merely to determine the facts, but to apply the law to those facts and draw the ultimate conclusion of guilt or innocence.

Gaudin, 515 US at 514, 115 SCt at 2315-16, 132 LEd2d at 452. As this legal tenet is stated in cases decided even prior to Novaock's trial, and is precisely the ground upon which Novaock bases his petition, his claim that Gaudin permits a previously unavailable argument is without merit.(fn2)  Cf. Murray v. Carrier, 477 US 478, 488, 106 SCt 2639, 2645, 91 LEd2d 397, 408 (1986):

Without attempting an exhaustive catalog ... we note that a showing that the factual or legal basis for a claim was not reasonably available to counsel or that some interference by officials made compliance impracticable, would constitute cause under this standard.

(quoted in Gregory, 449 NW2d at 830-31); cf. Ashker III, 534 NW2d at 69 (habeas counsel's "not wanting to 'incur the wrath' of the Justices does not constitute 'reasonable cause.'"); Gregory, 449 NW2d at 832 (holding that "an informed and calculated decision not to raise these issues when he had a chance to do so ... is clearly well short of the establishment of 'cause'").

[¶10] Additionally, the argument that this court would have affirmed the conviction by applying harmless error analysis to the defective jury instruction is presumptuous and ill-informed. When a party alleges error, our analysis begins by ascertaining whether he demonstrated an error which occurred in another proceeding. Once error is established, the burden is on that party to establish that the error was prejudicial, i.e., that under the evidence the jury probably would have returned a different verdict if the alleged error had not occurred; if he cannot, the error is deemed harmless. See, e.g., State v. Etzkorn, 1996 SD 99, ¶¶13-17, 552 NW2d 824, 828-29; State v. Hart, 1996 SD 17, ¶17, 544 NW2d 206, 210. We apply the harmless error rule to constitutional violations, but only when "the court is able to declare a belief beyond a reasonable doubt that the error was harmless and did not contribute to the verdict obtained." State v. Michalek, 407 NW2d 815, 819 (SD 1987) (emphasis added) (citing State v. Heumiller, 317 NW2d 126, 130 (SD 1982); Chapman v. California, 386 US 18, 87 SCt 824, 17 LEd2d 705 (1967); Harrington v. California, 395 US 250, 89 SCt 1726, 23 LEd2d 284 (1969)); accord State v. Helmer, 1996 SD 31, ¶37, 545 NW2d 471, 477; State v. Larson, 512 NW2d 732, 735 (SD 1994).

[¶11] It is axiomatic that a prediction that one might be unsuccessful on direct or habeas appeal does not furnish the "cause for a procedural default" required in a successive petition for post-conviction relief.

[¶12] By stating that the conviction would have been affirmed because this court would have concluded that the defective instruction constituted harmless error, Novaock is essentially conceding that he cannot demonstrate the prejudice necessary to undermine the verdict. Contrary to that argument, Novaock's brief surprisingly asserts that "even applying a harmless error analysis to the limited circumstantial facts in this case that the result would have been different had the omitted terms been included in the jury instructions." However, we do not address whether he established "actual prejudice resulting from the alleged constitutional violation" because he has failed to first demonstrate "cause for his omission or failure to previously raise the grounds for habeas relief." Ashker III, 534 NW2d at 67, 69; Gregory, 449 NW2d at 830, 832.

[¶13] The denial of Novaock's petition for habeas corpus relief is affirmed.(3) 

[¶14] MILLER, Chief Justice, and AMUNDSON, KONENKAMP and GILBERTSON, Justices, concur.

1.  Novaock makes a vague claim that the State suppressed evidence. The same habeas court judge presided over both of Novaock's habeas hearings and ruled that this issue was rejected in Novaock's first petition and dismissed it as res judicata. Novaock neither argues nor demonstrates that this was error and we affirm. He also claims that his assertion of innocence should be considered, citing Wyldes v. Hundley, 69 F3d 247 (8thCir 1995), cert. denied, ___ US ___, 116 SCt 1578, 134 LEd2d 676 (1996). Wyldes, like Novaock, did not assert actual innocence as an independent ground for habeas relief, but merely as a "gateway" to allow the court to consider his defaulted federal claim. Wyldes lends no support to Novaock, as he does not meet the test set forth in that case:

First, the petitioner must support his allegations of constitutional error with new reliable evidence that was not presented at trial. Next, the petitioner must prove that it is more likely than not that no reasonable jury would have convicted him in the light of the new evidence.

Id. at 254 (citations & internal quotations omitted). Novaock's "new evidence" is the alleged suppressed evidence, a claim barred as res judicata. The Wyldes court's concerns about this argument are worth repeating here:

Were protestation of innocence the only prerequisite to application of this exception, we fear that actual innocence would become a gateway forever open to habeas petitioners' defaulted claims. This is untenable in light of the Supreme Court's observation that "a substantial claim that constitutional error has caused the conviction of an innocent person is extremely rare."

Id. (affirming dismissal of successive petition for habeas relief) (citation & internal quotation omitted).

2.  Even if Gaudin controlled here, it does not automatically dictate reversible error. This court recently relied on United States v. Raether, 82 F3d 192 (8thCir 1996), to construe Gaudin. See State v. Pechan, 1996 SD 123, ¶¶11-12, 554 NW2d 663, 665 (finding reversible error in a Gaudin situation, but noting that a modified harmless error analysis applied: "[D]espite the applicability of harmless error analysis to a trial court's error in removing a materiality determination from a jury, prejudice is presumed to result from the error unless state shows the jury made an 'independent determination' as to materiality."). This modified harmless error analysis is confined to a Gaudin error, clearly not present here.

3.  We also affirm the denial of Novaock's petition for writ of error coram nobis. Statutory remedies must be unavailable or inadequate before coram nobis relief will be granted. In re Brockmueller, 374 NW2d 135, 137 (SD 1985) (citations omitted). Here, Novaock's inability to meet the cause and prejudice test required under SDCL 21-27-16.1 does not render the statute "unavailable" or "inadequate."