#29220-aff-PJD

2022 S.D. 5

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

CHADWICK WILLIAM HARRIS, Petitioner and Appellant,

v.

BRENT FLUKE, Warden of the

Mike Durfee State Prison, Respondent and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SECOND JUDICIAL CIRCUIT

MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE DOUGLAS E. HOFFMAN

Judge

* * * *

MARK KADI of

Minnehaha County Office

 of the Public Advocate

Sioux Falls, South Dakota Attorneys for petitioner

and appellant.

JASON R. RAVNSBORG

Attorney General

QUINCY R. KJERSTAD

Assistant Attorney General

Pierre, South Dakota Attorneys for respondent

and appellee.

* * * *

CONSIDERED ON BRIEFS

AUGUST 24, 2020

OPINION FILED 01/19/22
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DEVANEY, Justice

[¶1.] After this Court affirmed Chadwick Harris’s conviction of third-degree 

rape on direct appeal, Harris applied for habeas corpus relief alleging ineffective 

assistance of counsel. The habeas court dismissed Harris’s application after 

granting the State’s motion for summary judgment, but the court issued a 

certificate of probable cause on issues relating to the doctrine of res judicata. Harris 

appeals, and we affirm.

Factual and Procedural Background

[¶2.] A grand jury indicted Harris on one count of third-degree rape—sexual 

penetration of a person incapable of giving consent due to an intoxicating, narcotic, 

or anesthetic agent, or hypnosis. Harris pled not guilty, and at trial, argued 

consent as his defense. The jury found Harris guilty and he appealed, alleging 

multiple errors. Relevant here, Harris asserted that the circuit court abused its 

discretion in admitting the victim’s testimony, over a hearsay objection, that a rape 

hotline operator had told her that “it sounded like [she] was raped multiple times” 

and that she “should go to the ER right away.” Harris further asserted that plain 

error occurred in light of the prosecutor’s interjection, during closing argument, of 

his own personal study of the evidence and conclusions.1 This Court summarily 

affirmed Harris’s conviction.

1. During closing arguments, the prosecutor made the following remarks:

I thought long and hard about this case. I thought long and hard 

about whether or not this was a case that needed to be heard by a jury. 

And it’s a serious allegation. I thought about the evidence, and I 

looked at the video, the phone report. I looked at everything and it 

(continued . . .)
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[¶3.] In 2018, Harris filed an amended application for habeas corpus relief 

alleging ineffective assistance of counsel based on two alleged errors: (1) trial 

counsel’s failure to object to the prosecutor’s alleged vouching during closing 

argument; and (2) trial counsel’s failure to object on Confrontation Clause grounds 

to the victim’s testimony restating what the rape hotline operator had said to her.2 

After the habeas court issued a provisional writ of habeas corpus, the State filed a 

motion for summary judgment. The State argued that Harris could not establish 

prejudice on his ineffective assistance of counsel claim related to the alleged 

improper vouching because this Court summarily denied relief for that alleged error 

on direct appeal. The State further asserted that Harris could not establish error 

by his trial counsel’s failure to object on confrontation grounds to the victim’s 

testimony because, according to the State, the statement was properly admitted.

[¶4.] At the hearing on the application, the habeas court took judicial notice 

of the underlying criminal file and heard arguments from counsel. On the issue of 

the alleged improper vouching by the prosecutor, the habeas court granted 

summary judgment. It reasoned that the prejudice inquiry on plain error review is 

the same as the prejudice inquiry under Strickland v. Washington, 466 U.S. 668, 

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and thus, this Court’s denial of relief on 

________________________

(. . . continued)

became clear to me that Mr. Harris did take advantage of [R.K.’s] 

impairment; that she was incapable of consent; that he knew it; and 

that a jury needed to hear about it.

2. Harris’s habeas counsel is different than both his appellate and trial counsel.
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direct appeal under plain error review was res judicata precluding Harris’s 

ineffective assistance of counsel claim related to the same error.

[¶5.] The court next considered the State’s argument that summary 

judgment would be appropriate on Harris’s claim that trial counsel was ineffective 

for failing to raise a Confrontation Clause violation when objecting to the victim’s 

testimony restating what the rape hotline operator had said. The State asserted 

that this testimony was foundational and not offered for the truth of the matter 

asserted. In response, Harris’s counsel asserted that the statement was testimonial 

because it went “to the ultimate conclusion of the case: Whether a rape occurred.” 

After further argument by counsel for both parties and questions from the habeas 

court, the court granted the State summary judgment on this claim of ineffective 

assistance of counsel also.

[¶6.] Harris appeals, asserting the following issues as stated in the habeas 

court’s certificate of probable cause:

1. Whether the ineffective assistance of counsel prejudice 

standard articulated in Strickland v. Washington, 466 

U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) requires 

a lower level or quality of showing of prejudice than is 

required under plain error analysis as articulated in State 

v. McMillen, 2019 S.D. 40, 931 N.W.2d 725.

2. Whether a judicial determination on appeal that alleged 

trial irregularities do not constitute plain error precludes, 

under the doctrine of res judicata, collateral review of 

counsel’s performance as ineffective assistance for failing 

to address and seek to mitigate the same issues at trial.
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Standard of Review

[¶7.] As we recently stated in Neels v. Dooley:

“A habeas corpus applicant has the initial burden of proof to 

establish a colorable claim for relief.” Jenner v. Dooley, 1999 

S.D. 20, ¶ 11, 590 N.W.2d 463, 468. However, “[h]abeas corpus 

is not a substitute for direct review.” Loop v. Class, 1996 S.D. 

107, ¶ 11, 554 N.W.2d 189, 191 (citation omitted). Rather, 

“[h]abeas corpus can be used only to review (1) whether the 

court had jurisdiction of the crime and the person of the 

defendant; (2) whether the sentence was authorized by law; and 

(3) in certain cases whether an incarcerated defendant has been 

deprived of basic constitutional rights.” Id. (citation omitted). 

Ordinarily, we review a habeas court’s findings of fact for clear 

error, see Jenner, 1999 S.D. 20, ¶ 11, 590 N.W.2d at 468, but 

here the habeas court granted the State’s motion for summary 

judgment as a matter of law. Therefore, our review is de novo. 

See Reutter v. Meierhenry, 405 N.W.2d 627, 630 (S.D. 1987) 

(recognizing that the rules governing summary judgment apply 

in habeas proceedings).

2022 S.D. 4, ¶ 10, 969 N.W.2d 729, 733.

Analysis and Decision

[¶8.] The first issue on appeal is resolved by this Court’s recent decision in 

Neels, where counsel advanced the same arguments as those made here on behalf of 

Harris.3 See id. ¶ 16–17, 969 N.W.2d at 735–36. In that case, we reviewed United 

States Supreme Court precedent and decisions from this Court and specifically held 

that the showing of prejudice under Strickland is the same as that required to 

establish prejudice under plain error review. Id. Likewise, here, the habeas court 

properly determined that the prejudice standard applicable to Harris’s ineffective 

assistance of counsel claims on habeas requires the same showing of prejudice as is 

3. Neels and Harris were represented by the same attorney in their respective 

habeas actions.
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required under plain error review on direct appeal related to the same underlying 

trial errors.4

[¶9.] This Court’s decision in Neels is also instructive in resolving the 

question whether the habeas court properly determined that the doctrine of res 

judicata precludes a consideration of Harris’s habeas claim that counsel was 

ineffective for failing to object to the prosecutor’s improper vouching. In particular, 

the Court in Neels examined whether a denial of relief on direct appeal under plain 

error review necessarily precludes review of an ineffective assistance of counsel 

claim on habeas for the same underlying trial errors. Id. ¶¶ 20–24, 969 N.W.2d at 

736–38. In Neels, we quoted the four prongs a defendant must show to establish 

plain error and then explained that “although the prejudice inquiry on plain error 

review is the same as that applied to an ineffective assistance of counsel claim, this 

alone does not mean that in all cases a denial of relief on direct appeal under plain 

error review bars a defendant from obtaining review on habeas of a claim of 

ineffective assistance of counsel related to the same underlying errors.” Id. ¶ 20, 

969 N.W.2d at 736. Rather, for res judicata to bar a subsequent ineffective 

assistance claim on habeas arising out of the same underlying trial error, the denial 

4. Counsel for Harris advances a similar argument as that asserted and rejected 

in Neels. In particular, counsel for Harris asks this Court to view the 

prejudice inquiry from the perspective that Harris’s trial counsel’s failure to 

preserve issues at trial subjected Harris’s later alleged errors to a more 

onerous standard of review on direct appeal. However, the prejudice inquiry 

necessitated by Harris’s ineffective assistance claim looks to the result at 

trial, not on appeal. As we said in Neels, “the controlling inquiry under 

Strickland is whether the error on the part of trial counsel ‘undermined 

confidence in the outcome of the trial,’ and not ‘whether trial counsel’s error 

resulted in an unfavorable standard of review on appeal.’” 2022 S.D. 4, ¶ 13, 

969 N.W.2d at 734 (citation omitted).
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of relief on direct appeal under plain error review must occur “because the 

defendant failed to establish error or prejudice[.]” Id.

[¶10.] Therefore, we begin by reviewing the language of this Court’s 

summary order from Harris’s direct appeal, which provides in relevant part “that it 

is manifest on the face of the briefs and the record that the appeal is without merit 

on the following grounds: 1. that the issues on appeal are clearly controlled by 

settled South Dakota law or federal law binding upon the states . . . .” Similar to 

the second claim of ineffective assistance of counsel in Neels, the language of the 

summary order here does not identify which prong or prongs of plain error review 

this Court relied upon in denying Harris relief on his claim of improper vouching by 

the prosecutor. However, as we explained in Neels, albeit for a different alleged 

error, by finding the “issue to be ‘without merit’ because the issue was ‘clearly 

controlled by settled South Dakota law[,]’” the Court “found either no error or no 

prejudice.” See 2022 S.D. 4, ¶ 24, 969 N.W.2d at 738.

[¶11.] Finally, as we observed in Neels, the review of the prejudicial impact of 

certain types of trial error, regardless of whether raised on direct appeal or in a 

habeas proceeding, is identical. See id. ¶ 25. Here, the prejudice inquiry attendant 

to an ineffective assistance of counsel claim related to the prosecutor’s improper 

vouching does not require further development of a record on habeas. The impact of 

the statement can be ascertained by reviewing the existing trial record. Therefore, 

regardless of whether trial counsel’s performance is deemed deficient under 

Strickland standards for failing to object to the prosecutor’s commentary, this 

Court’s denial of relief on direct appeal by summary order under SDCL 15-26A-
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87.1(A)(1) for the same underlying trial error is res judicata, precluding review of 

Harris’s ineffective assistance claim on habeas. “It is well settled that ‘[a] habeas 

court cannot [ ] review issues previously decided by this Court on direct appeal.’” 

Neels, 2022 S.D. 4, ¶ 11, 969 N.W.2d at 733 (quoting Lodermeier v. Class, 1996 S.D. 

134, ¶ 24, 555 N.W.2d 618, 626). The habeas court properly dismissed this 

ineffective assistance of counsel claim based upon res judicata principles.

[¶12.] Harris also argues that the habeas court erred in granting summary 

judgment on his ineffective assistance of counsel claim alleging that his trial 

counsel should have asserted a Confrontation Clause violation when objecting to the 

victim’s testimony about what the rape hotline operator had told her. However, the 

certificate of probable cause does not identify this issue for the Court’s review on 

appeal. The certificate refers only to the res judicata effect of a decision on direct 

appeal applying plain error review. As Harris acknowledges, trial counsel objected 

on hearsay grounds to the admission of this testimony from the victim, and this 

Court applied the abuse of discretion standard on direct appeal in reviewing the 

trial court’s admission of the same over counsel’s hearsay objection. Thus, there 

was no judicial determination on direct appeal applying plain error review to the 

Confrontation Clause issue Harris now raises in his ineffective assistance of counsel 

claim relating to this testimony.

[¶13.] From our review of the transcript of the habeas hearing, it appears the 

habeas court granted the State summary judgment on the merits of Harris’s claim 

that trial counsel was ineffective for failing to object to the admission of the rape 

hotline operator’s statements on Confrontation Clause grounds. Although the 
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habeas court had indicated in its oral ruling that it would issue a certificate of 

probable cause as to both ineffective assistance of counsel claims, the issues later 

identified by the court in its certificate of probable cause do not encompass this 

particular claim. Therefore, we have no jurisdiction to consider it. See White v. 

Weber, 2009 S.D. 44, ¶ 10, 768 N.W.2d 144, 149 (declining to review ineffective 

assistance of counsel claims not identified as appealable issues in the certificate of 

probable cause).

[¶14.] Affirmed.

[¶15.] JENSEN, Chief Justice, and SALTER, Justice, and GILBERTSON, 

Retired Chief Justice, concur.

[¶16.] KERN, Justice, concurs in part and dissents in part.

[¶17.] MYREN, Justice, not having been a member of the Court at the time 

this action was submitted to the Court, did not participate.

KERN, Justice (concurring in part and dissenting in part).

[¶18.] In Harris’s direct appeal on the issue of alleged improper vouching in 

the prosecutor’s closing argument, this Court summarily affirmed Harris’s 

conviction, reasoning, as the majority opinion quotes, “that it is manifest on the face 

of the briefs and the record that the appeal is without merit on the following

grounds: 1. that the issues on appeal are clearly controlled by settled South Dakota 

law or federal law binding upon the states . . . .” Because I do not agree that the 

issue regarding alleged improper vouching in Harris’s current habeas corpus 
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petition is precluded by this language under the doctrine of res judicata, I 

respectfully dissent as to this issue only.

[¶19.] As in Neels v. Dooley, the majority opinion infers from the summary 

affirmance language quoted above that this Court found “either no error or no 

prejudice” from the alleged improper vouching on direct appeal. 2022 S.D. 4, ¶ 24, 

969 N.W.2d at 738. However, the summary affirmance language here and the 

majority opinion’s inference therefrom does not satisfy the applicable res judicata 

requirement that a matter must have been already litigated and decided to foreclose 

litigation of that matter.5 Here, the summary affirmance language lacks a decision 

from this Court on the issue of prejudice arising from alleged improper vouching. 

Therefore, this issue is not properly precluded under the doctrine of res judicata.

[¶20.] Here, the same caution set forth in the Neels dissent applies:

The writ of habeas corpus is the last line of defense within our 

state judicial system against deprivations of basic constitutional 

rights in criminal matters. When, on direct appeal, this Court 

declines to specifically address a defendant’s claims in a written 

opinion, or in a summary order, it creates uncertainty as to the 

preclusive effect of the direct appeal on a subsequent habeas 

petition alleging ineffective assistance of counsel. For this 

reason, res judicata should be applied to habeas corpus petitions 

in only the clearest of circumstances by this Court—not based on 

a summary conclusion in an order of affirmance.

Id. ¶ 32, 969 N.W.2d at 739.

5. As clarified in the dissent in Neels, “Our doctrine of res judicata includes two 

concepts: issue preclusion and claim preclusion.” 2022 S.D. 4, ¶ 31, 969

N.W.2d at 739. Again, as in Neels, “Only issue preclusion is relevant here, 

and issue preclusion may only foreclose relitigation of matters that have 

already been ‘litigated and decided.’” Id. (quoting Piper v. Young, 2019 S.D. 

65, ¶ 22, 936 N.W.2d 793, 804).