#26577-a-LSW

2013 S.D. 74

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

VINCENT CHAD FAST HORSE, Petitioner and Appellant,

v.

DOUGLAS WEBER, WARDEN 

OF THE SOUTH DAKOTA

STATE PENITENTIARY, Respondent and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SECOND JUDICIAL CIRCUIT

MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE JOSEPH NEILES

Judge

* * * *

CYNTHIA A. HOWARD of

Minnehaha County Office of 

 The Public Advocate

Sioux Falls, South Dakota Attorneys for petitioner

and appellant.

MARTY J. JACKLEY

Attorney General

ANN C. MEYER

Assistant Attorney General

Pierre, South Dakota Attorneys for respondent 

and appellee. 

* * * *

CONSIDERED ON BRIEFS 

ON AUGUST 27, 2013

OPINION FILED 10/16/13
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WILBUR, Justice 

[¶1.] Vincent Fast Horse appeals the denial of his request for habeas corpus 

relief. We affirm. 

FACTS AND PROCEDURAL BACKGROUND

[¶2.] Fast Horse was indicted by a grand jury in September 2007 for the 

crimes of first-degree kidnapping, second-degree rape, and aggravated assault. The 

State also filed a part two information, which alleged that Fast Horse had been 

previously convicted of two felonies. The factual and procedural history of this case 

is set forth in this Court’s opinion in State v. Fasthorse (Fasthorse), 2009 S.D. 106, 

776 N.W.2d 233.1 

[¶3.] Traci Smith (trial counsel) was appointed to represent Fast Horse. 

Fast Horse pleaded not guilty to the charges and the part two information at an 

arraignment hearing2 on October 24, 2007. The jury convicted Fast Horse of the 

three charges.

[¶4.] On July 28, 2008, the trial court conducted an arraignment hearing in 

relation to Fast Horse’s part two information at which Fast Horse pleaded guilty. 

Ultimately, the trial court sentenced Fast Horse to 25 years in prison for 

aggravated assault, 60 years in prison for second-degree rape, and 60 years in 

 

1. We note that in the 2009 direct appeal we incorrectly referred to Fast Horse’s 

last name as “Fasthorse.” 

2. The judge (arraigning court) who presided over the October 24, 2007 

arraignment was different from the judge (trial court) who presided over the 

trial and the July 28, 2008 part two information arraignment.
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prison for first-degree kidnapping. These penalties were to run concurrently with 

each other and consecutively to Fast Horse’s 1996 rape conviction.3 

[¶5.] Fast Horse appealed his convictions for aggravated assault, 

kidnapping, and rape to this Court in Fasthorse. See generally id. This Court 

affirmed Fast Horse’s convictions. Id.

[¶6.] Fast Horse filed a pro se petition for writ of habeas corpus on October 

8, 2010. Fast Horse was appointed new counsel. On February 17, 2012, Fast Horse 

filed an amended application for writ of habeas corpus. The habeas court filed a 

writ of habeas corpus on the same day. A habeas hearing was held on June 5, 2012. 

At the hearing, an investigator from the police department, trial counsel, Fast 

Horse, and one of the two prosecutors, Paul Bengford, testified.

[¶7.] On August 10, 2012, the habeas court filed a memorandum decision 

denying Fast Horse’s writ of habeas corpus. The habeas court subsequently entered 

findings of fact and conclusions of law, and an order denying the permanent writ of 

habeas corpus and judgment on September 10, 2012. 

[¶8.] Fast Horse appeals the denial of his writ of habeas corpus and 

presents the following issues on appeal:

1. Whether Fast Horse was denied effective assistance of 

counsel when his trial counsel did not thoroughly 

investigate his case; incorrectly advised him of the 

maximum possible penalty; did not obtain a plea bargain 

offer for him; and did not adequately attack the credibility 

of the victim.

 

3. Fast Horse previously sought habeas relief from his 1996 rape conviction. 

Relief was denied. This Court affirmed the denial of his request for habeas 

relief. See Fast Horse v. Weber (Fast Horse I), 1999 S.D. 97, 598 N.W.2d 539. 
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2. Whether Fast Horse was denied a fair trial when the trial 

court limited his ability to cross-examine the victim.

3. Whether Fast Horse was denied due process of law when 

the arraigning court incorrectly advised Fast Horse of the 

maximum possible penalty.

STANDARD OF REVIEW

[¶9.] “A habeas corpus claim is a collateral attack on a final judgment and 

therefore our review is limited.” Boyles v. Weber, 2004 S.D. 31, ¶ 6, 677 N.W.2d 531, 

536. “A habeas corpus applicant has the initial burden of proof to establish a 

colorable claim for relief.” Steiner v. Weber, 2011 S.D. 40, ¶ 4, 815 N.W.2d 549, 551 

(quoting Jenner v. Dooley, 1999 S.D. 20, ¶ 11, 590 N.W.2d 463, 468). “Habeas 

corpus can only be used 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. (quoting Jenner, 1999 S.D. 20, ¶ 11, 590 N.W.2d at 

468). A habeas court’s findings of fact will be upheld unless such findings are 

clearly erroneous. Boyles, 2004 S.D. 31, ¶ 6, 677 N.W.2d at 536. 

[¶10.] Additionally, we have previously delineated the standard of review for 

claims of ineffective assistance of counsel:

Whether a defendant has received ineffective assistance of 

counsel is essentially a mixed question of law and fact. In the 

absence of a clearly erroneous determination by the circuit

court, we must defer to its findings on such primary facts 

regarding what defense counsel did or did not do in preparation 

for trial and in his presentation of the defense at trial. This 

Court, however, may substitute its own judgment for that of the 

circuit court as to whether defense counsel’s actions or inactions 

constituted ineffective assistance of counsel.
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Id. ¶ 7, 677 N.W.2d at 536 (quoting Hays v. Weber, 2002 S.D. 59, ¶ 12, 645 N.W.2d 

591, 596). 

DECISION

[¶11.] In this appeal, Fast Horse alleges four instances of ineffective 

assistance of counsel that he claims affected the outcome of his trial. In addition, 

Fast Horse alleges two due process violations. First, Fast Horse alleges that he was 

denied a fair trial when the trial court limited his ability to cross-examine the 

victim. Second, he alleges that he was denied due process when the arraigning 

court incorrectly advised him of the maximum possible penalty.

[¶12.] 1. Whether Fast Horse was denied effective assistance of 

counsel when his trial counsel did not thoroughly 

investigate his case; incorrectly advised him of the 

maximum possible penalty; did not obtain a plea bargain 

offer for him; and did not adequately attack the 

credibility of the victim.

[¶13.] Fast Horse alleges four instances of ineffective assistance of counsel. 

Specifically, he contends that his trial counsel failed to thoroughly investigate his 

case; incorrectly advised him of the maximum possible penalty; did not obtain a plea 

bargain offer for him; and did not adequately attack the credibility of the victim.

[¶14.] “To prevail ‘on a claim of ineffective assistance of counsel, a defendant 

must show that his counsel provided ineffective assistance and that he was 

prejudiced as a result.’” State v. Hannemann, 2012 S.D. 79, ¶ 11, 823 N.W.2d 357, 

360 (quoting State v. Thomas, 2011 S.D. 15, ¶ 21, 796 N.W.2d 706, 713). “[A]

defendant must show that counsel’s representation fell below an objective standard 

of reasonableness.” Id. “The question is whether counsel’s representation 
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amounted to incompetence under prevailing professional norms, not whether it 

deviated from best practices or most common custom.” Id. Moreover, 

[t]here is a strong presumption that counsel’s performance falls 

within the wide range of professional assistance and the 

reasonableness of counsel’s performance is to be evaluated from 

counsel’s perspective at the time of the alleged error and in light 

of all the circumstances and the standard of review is highly 

deferential. The petitioner must overcome the presumption 

that, under the circumstances, the challenged action might be 

considered sound trial strategy.

Boyles, 2004 S.D. 31, ¶ 27, 677 N.W.2d at 540 (quoting Siers v. Class, 1998 S.D. 77, 

¶ 12, 581 N.W.2d 491, 495). 

[¶15.] “To establish prejudice, there must be ‘a reasonable probability that, 

but for counsel’s unprofessional errors, the result of the proceeding would have been 

different.’” Hannemann, 2012 S.D. 79, ¶ 11, 823 N.W.2d at 360 (quoting Thomas, 

2011 S.D. 15, ¶ 28, 796 N.W.2d at 715). “Ultimately, . . . the question is whether 

there is a reasonable probability that, absent the errors, the factfinder would have 

had a reasonable doubt respecting guilt.” Id.

Case investigation 

[¶16.] Fast Horse contends that trial counsel was ineffective because she

failed to interview the victim’s boyfriend. Fast Horse argues that the victim’s 

boyfriend could have been a source of information to attack the victim’s credibility 

because the victim completed a medical questionnaire in which she stated that she

had not had sexual intercourse within 72 hours prior to the rape even though the 

victim’s boyfriend’s DNA was present in the victim and on her undergarments.

Fast Horse contends that “[the victim’s boyfriend] was an important source of 

information about [the victim’s] sexual activity during the time frame of the alleged 
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rape.” And Fast Horse alleges that “[i]n the end, [the victim’s boyfriend] might not 

have been called as a witness for the defense, but he surely had information that 

was pertinent to the case.” 

[¶17.] “We have held that ‘standing alone, the fact that defense counsel failed 

to investigate a witness does not by itself satisfy the prejudice prong of Strickland.’” 

Boyles, 2004 S.D. 31, ¶ 31, 677 N.W.2d at 542 (quoting Siers, 1998 S.D. 77, ¶ 25, 581 

N.W.2d at 497-98). And, in order for Fast Horse to establish prejudice, “he must 

show ‘that the witness would have testified and that their testimony would have 

probably changed the outcome of the trial.’” Id. “[S]peculation about the existence 

of a witness and what the witness might say is [also] inadequate to undermine 

confidence in the outcome and to establish the prejudice prong of a claim of 

ineffective assistance of counsel.” Fast Horse v. Weber (Fast Horse I), 1999 S.D. 97, 

¶ 18, 598 N.W.2d 539, 544 (emphasis added).

[¶18.] Trial counsel testified that she made a tactical decision not to solicit 

any testimony from the victim’s boyfriend “[b]ecause all he would have really done 

is confirm that [victim and victim’s boyfriend] had had sex.” Trial counsel stated 

that if the victim’s boyfriend had confirmed that the two had sexual intercourse, 

all it would have turned out to be is “So [the victim] was 

mistaken when she told the doctor when she[ ] [was] under the 

influence of alcohol and marijuana and had just been under this 

traumatic event, so she had given the ER doctor inaccurate 

information about having sex in the last 72 hours. Big deal.”

[¶19.] We agree with the habeas court that even if trial counsel should have 

interviewed the victim’s boyfriend, Fast Horse did not offer any specific evidence 

that demonstrated that trial counsel would have found relevant evidence from the 
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victim’s boyfriend’s testimony that would have probably changed the outcome of the 

trial. As noted by trial counsel, testimony from the victim’s boyfriend would not 

have informed the jury as to whether the encounter between Fast Horse and the 

victim was consensual or nonconsensual. And such testimony might have clarified 

any credibility questions the jurors may have had regarding the victim’s activities 

that evening based on her responses to the medical questionnaire. Indeed, trial

counsel took this into consideration and testified that the victim’s boyfriend’s 

testimony could have hurt the position that the defense was trying to establish—the 

victim’s lack of truthfulness. Additionally, Fast Horse failed to show that the 

victim’s boyfriend would have testified at trial and only speculates as to what

information the victim’s boyfriend would have testified to had he been called to 

testify. Taken together, Fast Horse’s argument is insufficient to establish the 

prejudice prong of the Strickland test. Therefore, we cannot say that the habeas

court erred in its decision as to this point. 

[¶20.] Fast Horse also alleges that his trial counsel failed to obtain video 

surveillance footage from a convenience store that Fast Horse claimed he went to 

with the victim on the night the rape occurred. Fast Horse contends that trial 

counsel obtained video surveillance footage from other convenience stores but not 

from the store identified by Fast Horse. 

[¶21.] Trial counsel’s uncontroverted testimony at the habeas hearing

established that she and her staff investigated video surveillance footage, but were 

unsuccessful in their efforts to obtain the specific video surveillance footage

identified by Fast Horse. Additionally, the record does not demonstrate nor does 
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Fast Horse offer any explanation to this Court why this evidence was important or 

relevant. As the habeas court determined, Fast Horse failed to present any 

evidence to meet the first ineffective assistance of counsel prong. There is nothing 

in the record to indicate that counsel’s failure to obtain the requested video 

surveillance footage was any fault of her own. And, in any event, Fast Horse failed 

to establish that had this evidence been obtained, it would have created a

reasonable probability the result of the proceeding would have been different. 

Therefore, the habeas court’s determination as to this issue is affirmed.

Counsel’s advice on maximum possible penalty 

[¶22.] Fast Horse alleges that trial counsel was ineffective because trial 

counsel did not give Fast Horse correct advice as to the maximum possible penalty 

he faced if convicted of the underlying charge of kidnapping and the part two 

information. Fast Horse maintains that he was prejudiced in that he would have 

been willing to consider a plea bargain offer had he known that he could have 

received less than a mandatory life sentence. 

[¶23.] At Fast Horse’s arraignment prior to trial in October 2007, the 

arraigning court correctly advised Fast Horse that the kidnapping charge was a 

class C felony and punishable by up to life in prison. The arraigning court also 

discussed the legal effect of the part two information. Counsel for the State, 

however, advised the arraigning court that because of the part two information, the 

maximum penalty for the kidnapping charge would be a class B felony, a mandatory 

life sentence. The arraigning court then advised Fast Horse as to the same. This 

advice was incorrect, however. The South Dakota Legislature amended SDCL 22-7-
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7 in 2005 to state, in pertinent part, that the enhancement would “in no 

circumstance . . . exceed the sentence for a Class C felony.” See 2005 S.D. Sess. 

Laws ch. 120, § 383. The amendment was effective July 1, 2006. Thus, Fast Horse 

actually faced a maximum penalty of life in prison and not a mandatory life 

sentence. 

[¶24.] Following trial, at the July 28, 2008 arraignment hearing in relation to 

Fast Horse’s part two information, the trial court correctly advised Fast Horse that 

the part two information would not “affect the penalty for kidnapping in the first 

degree, as [the] maximum penalty for that charge is life imprisonment.” Fast Horse 

pleaded guilty to the part two information. Additionally, trial counsel became 

aware of the arraigning court’s mistaken advisement that same day and discussed

the correct penalty with Fast Horse. 

[¶25.] At sentencing on October 10, 2008, trial counsel emphasized that Fast 

Horse “ha[d] made a lot of bad decisions throughout his life, but [that] he ha[d]

steadfastly said from the very beginning of this case that he did not rape [the 

victim].” And prior to making its final sentencing determination, trial court again

stated that the first-degree kidnapping charge was a class C felony. 

[¶26.] As the habeas court determined, Fast Horse does not present any 

evidence to show how his trial counsel’s failure to identify the correct maximum 

penalty for the kidnapping charge prejudiced him. As established by trial counsel’s 

testimony, Fast Horse had always maintained his innocence to the charged offenses 

and a desire to go trial. Trial counsel also testified that she would never advise a 

client to plead guilty to something that the client contends he or she did not do in 
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order to receive a lighter sentence. Thus, even if counsel’s performance may have 

fallen below an objective standard of reasonableness, Fast Horse did not identify 

how this performance prejudiced him. Accordingly, we affirm the habeas court on 

this issue.

Plea bargain 

[¶27.] Fast Horse argues that his trial counsel was ineffective because she 

failed to obtain a plea bargain offer for him. He contends that he would have 

considered a plea bargain offer if he had known that he could have received less 

than a mandatory life sentence. Fast Horse asserts that because his trial counsel 

incorrectly advised Fast Horse as to the maximum penalty he faced, her mistake 

affected how trial counsel represented Fast Horse in the plea bargaining phase of 

his case.

[¶28.] “[A] defendant has no right to be offered a plea[.]” Missouri v. Frye, ___ 

U.S. ___, ___, 132 S. Ct. 1399, 1410, 182 L. Ed. 2d 379 (2012). See State v. Miller, 

2006 S.D. 54, ¶ 16, 717 N.W.2d 614, 619 (stating that “there is no constitutional 

right to be offered the opportunity to plea bargain”). Bengford testified that a plea 

offer had been constructed in Fast Horse’s case. The offer “was that if [Fast Horse] 

[pleaded] guilty to the second degree rape, and the Part Two Information, he would 

be facing up to life, and we would be seeking a life sentence, if he [pleaded] to that.” 

Bengford further testified that the State planned to seek the maximum penalty if 

Fast Horse pleaded guilty to second-degree rape. Because of Fast Horse’s violent 

criminal past, Bengford stated that any plea deal that would have been constructed 

for Fast Horse would not have been a generous offer and that a significant sentence 
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was appropriate. Bengford did not communicate this offer to Fast Horse’s trial 

counsel. After reviewing his notes from the file, Bengford testified that the offer 

“was written down by the other prosecutor in the case, Colleen Moran. And . . . the 

[State’s] file indicates that the offer was relayed by [Moran] at the dispositional 

conference.” Bengford did not recall whether Fast Horse responded to the offer. 

Moran was not called to testify at the habeas hearing.

[¶29.] The habeas court correctly concluded that Fast Horse’s argument that 

his trial counsel was ineffective for failing to obtain a plea bargain lacked 

evidentiary support. Even though Bengford testified that a plea offer was 

constructed and that notes from the State’s file indicated that Moran communicated 

the offer to Fast Horse, Bengford did not personally offer a plea to Fast Horse nor 

was Moran called to testify to confirm whether a plea offer was ever made to Fast 

Horse. The habeas court was left to rely on the testimony of trial counsel and her 

notes from the proceedings. And the habeas court found the testimony of Fast 

Horse’s counsel to be credible. Boyles, 2004 S.D. 31, ¶ 23, 677 N.W.2d at 540 

(internal citations omitted) (stating that “[c]redibility determinations are matters 

for the trier of fact, . . . and we will not substitute our judgment for that of the judge 

who saw the demeanor and heard the testimony of the witnesses”). In relying on 

her notes from the proceedings, trial counsel testified that the State never 

communicated an offer to the defense. She testified that at the dispositional 

conference, Bengford indicated that there would not be any plea offers. Trial 

counsel’s testimony further reflects that Fast Horse was not interested in a plea 

bargain, that he maintained his innocence to the charged offenses, and that he 
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wanted to go to trial. Trial counsel testified that she would never advise a client to 

plead guilty to something that the client contends he or she did not do in order to 

receive a lighter sentence. 

[¶30.] Fast Horse contends that two recent United States Supreme Court 

decisions support his argument. He cites to Lafler v. Cooper, ___ U.S. ___, 132 S. 

Ct. 1376, 182 L. Ed. 2d 398 (2012) arguing that “[t]he U[nited] S[tates] Supreme 

Court has recently affirmed that defendants have a right to competent counsel 

during the plea bargaining process.” He also cites Missouri v. Frye, ___ U.S. ___, 

132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012) arguing that “an attorney who does not 

even request an offer because of an erroneous belief about the maximum possible 

penalty or to at least attempt to save his/her client from serving many years in 

prison is not effective.” 

[¶31.] In Lafler, the United States Supreme Court decided how to apply 

Strickland’s prejudice test when ineffective assistance results in the defendant’s

rejection of a plea offer and the defendant is convicted at trial. ___ U.S. at ___, 132 

S. Ct. at 1384-91. In Frye, the United States Supreme Court stated that 

as a general rule, defense counsel has the duty to communicate 

formal offers from the prosecution to accept a plea on terms and 

conditions that may be favorable to the accused. Any exceptions 

to the rule need not be explored here, for the offer was a formal

one with a fixed expiration date.

Id. at ___, 132 S. Ct. at 1408 (emphasis added). The Court in Frye held that 

counsel’s failure to inform Frye of the written plea offer before it expired fell below 

an objective reasonableness standard. Id. at ___, 132 S. Ct. at 1408-10. The Court 

also held that Frye was required to show “not only a reasonable probability that he 
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would have accepted the lapsed plea but also a reasonable probability that the 

prosecution would have adhered to the agreement and that it would have been 

accepted by the trial court.” Id. at 1410-11.

[¶32.] Our review of these two cases demonstrates that they are 

distinguishable from the present case. Both Lafler and Frye involved undisputed 

plea offers from the prosecution to the defendant. Here, while Bengford testified 

that the notes from the State’s file indicated that Moran communicated the offer at 

the dispositional conference, the record does not contain any evidence that a plea 

offer was actually communicated to Fast Horse. Bengford did not personally offer a 

plea to Fast Horse nor was Moran called to testify to confirm whether a plea offer 

was made to Fast Horse. Thus, the habeas court was left with the testimony and 

notes of Fast Horse’s trial counsel, which confirmed that no plea bargain was ever

offered to Fast Horse. Furthermore, Fast Horse never wanted to enter into a plea 

bargain and Fast Horse always maintained his innocence to the charged offenses. 

The habeas court found this testimony to be credible. Accordingly, the habeas 

court’s determination as to this point is affirmed.

Victim’s credibility 

[¶33.] Fast Horse contends that his trial counsel was ineffective because trial 

counsel did not adequately attack the victim’s credibility with regard to victim’s

claim that Fast Horse had raped her. Specifically, he argues that the victim’s 

answer in a medical questionnaire that she had not had sexual intercourse within 

72 hours of the rape contradicted the DNA evidence. Fast Horse alleges that trial 

counsel should have re-called the victim and medical witnesses in order to attack 
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the credibility of the victim by presenting the victim’s contradictory statement to 

the jury. Fast Horse contends that the jury was left to rely on trial counsel’s 

statements in closing arguments as to the inconsistencies.

[¶34.] Trial counsel testified that the defense’s theory at trial was that Fast 

Horse and the victim had consensual sexual intercourse. In explaining her 

strategy, counsel testified,

[i]f I would have recalled [the victim] just to rehash [the 

questionnaire answer issue], then [the State] would have had 

another chance to have her say, “Well, even though you were 

wrong about the 72 hours, you weren’t wrong about him 

kidnapping you. You weren’t wrong about him taking you here. 

You weren’t wrong about him doing this. You weren’t wrong 

about him doing that.” It would have given the jury another 

chance to be more sympathetic, and the last things they hear 

would be all of the information I wouldn’t want them to hear.

[¶35.] The habeas court determined that trial counsel’s decision to not re-call 

the victim or medical witnesses was sound trial strategy. The habeas court noted 

that by calling the victim back to the stand, the defense could have potentially 

created more sympathy for the victim and would have allowed the victim to explain 

her statement in the medical questionnaire in some way that would have been 

consistent with the DNA testimony. We agree. The decision by trial counsel was 

defensible and sound trial strategy. Based on counsel’s trial strategy and rationale 

for such strategy, the habeas court correctly determined that trial counsel was not 

ineffective.

[¶36.] 2. Whether Fast Horse was denied a fair trial when the 

trial court limited his ability to cross-examine the victim.

[¶37.] Fast Horse argues that he was denied a fair trial when the trial court 

limited his ability to cross-examine the victim about her sexual activity in the 72 
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hours prior to the rape and about her arrest on a drug charge, which occurred after 

the rape. Fast Horse asserts that this information was important because it would 

have impeached the victim’s credibility. 

[¶38.] At trial, the court determined that cross-examination of the victim 

concerning her drug charge was not relevant to her ability to recall events from the 

night of the rape and that Fast Horse was trying to attack the victim’s character in 

an impermissible manner. Fasthorse, 2009 S.D. 106, ¶ 15, 776 N.W.2d at 238-39. 

The trial court also ruled that the victim’s statements on the medical questionnaire

concerning her sexual activity within 72 hours prior to the rape were not relevant

and the proper foundation had not been laid for the introduction of such evidence. 

Id. ¶ 16, 776 N.W.2d at 239. 

[¶39.] In Fasthorse, we agreed with the trial court and held that crossexamination of the victim concerning her drug charge was not relevant to the 

victim’s testimony concerning the rape. Id. ¶ 15, 776 N.W.2d at 238-39. As to the 

limitation on the cross-examination concerning the victim’s sexual activity on the 

night of the rape, we held that even if the trial court’s ruling was in error, Fast 

Horse was not prejudiced because the results of the DNA test were eventually 

presented to the jury, showing the presence of DNA from the victim, the victim’s 

boyfriend, Fast Horse, and an unknown contributor. Id. ¶ 17, 776 N.W.2d at 239. 

Additionally, Fast Horse was not prejudiced by the limited cross-examination on 

this topic because trial counsel was allowed to present Fast Horse’s theory of the 

case to the jury in her closing argument, including the impeaching DNA evidence. 
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Id. Ultimately, we held that the trial court did not abuse its discretion. Id. ¶¶ 15-

16, 776 N.W.2d at 239. 

[¶40.] The habeas court correctly determined that these arguments were res 

judicata as they had been specifically addressed by this Court in Fasthorse. See id. 

¶¶ 15-17, 776 N.W.2d at 238-39. It is settled law “that issues, which were raised in 

a direct appeal, are res judicata on a writ of habeas corpus.” Rhines v. Weber, 2000 

S.D. 19, ¶ 59, 608 N.W.2d 303, 316. Consequently, these issues are barred from 

consideration by this Court.

[¶41.] 3. Whether Fast Horse was denied due process of law when 

the arraigning court incorrectly advised Fast Horse of 

the maximum possible penalty.

[¶42.] Finally, Fast Horse argues that he was denied due process of law when 

the arraigning court incorrectly advised Fast Horse of the maximum possible 

penalty he faced. Fast Horse contends that the arraigning court’s incorrect advice 

resulted in a due process violation because Fast Horse’s trial counsel was also 

“laboring under this [same] mistake” and it affected “how [trial counsel] represented 

[Fast Horse] in the plea bargaining phase of his case.” 

[¶43.] As was discussed previously, the arraigning court incorrectly advised 

Fast Horse that he faced mandatory life in prison if convicted of the kidnapping 

charge and the part two information. However, pursuant to the 2005 amendment of 

SDCL 22-7-7, Fast Horse actually faced a maximum of life in prison. At the 

arraignment on the part two information, the trial court correctly advised Fast 

Horse of the maximum penalty.
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[¶44.] The habeas court determined Fast Horse’s argument as to this issue 

lacked evidentiary support. We agree. Fast Horse does not offer any evidence as to 

how the arraigning court’s incorrect statement regarding the maximum penalty 

affected his ability to obtain a plea bargain through his trial counsel. The trial 

court correctly advised Fast Horse of the maximum penalty at the arraignment 

hearing prior to Fast Horse’s guilty plea to the part two information. Additionally, 

Fast Horse had no interest in pursuing a plea bargain prior to trial; always 

maintained his innocence to the charged offenses; and at all times wanted to go to 

trial. Furthermore, Fast Horse received a lesser sentence from the trial court than 

the sentence any plea offer would have provided him. Indeed, Bengford testified 

that any plea offer from the State would not have been for anything less than the 

maximum—a life sentence. And Fast Horse did receive less than the maximum 

from the trial court—60 years in prison. Lastly, the only evidence presented to 

support his position is Fast Horse’s own testimony that he would have considered a 

plea bargain offer for anything less than a life sentence. But, trial counsel testified 

that she has never encouraged a client to plead guilty to something he asserts that 

he did not do in order to receive a more favorable sentence. Accordingly, the habeas 

court correctly determined that Fast Horse failed to demonstrate how the 

arraigning court’s incorrect statement regarding the maximum possible sentence 

violated his due process rights.

CONCLUSION

[¶45.] The habeas court correctly determined that Fast Horse failed to 

demonstrate ineffective assistance of counsel. Further, Fast Horse’s due process 
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claims regarding cross-examination of the victim concerning her sexual activity 

within 72 hours before the rape and her post-rape drug charge were res judicata, 

having been resolved in Fast Horse’s direct appeal. Lastly, the habeas court 

correctly determined that Fast Horse’s argument that the arraigning court’s 

mistaken advisement denied him due process lacked evidentiary support. 

[¶46.] Affirmed.

[¶47.] GILBERTSON, Chief Justice, and KONENKAMP and ZINTER, 

Justices, and BARNETT, Circuit Court Judge, concur.

[¶48.] BARNETT, Circuit Court Judge, sitting for SEVERSON, Justice, 

disqualified.