#28875-denied-DG

2019 S.D. 51

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

DAVID JOHN ASMUSSEN, Petitioner,

v.

DARIN YOUNG, Warden,

South Dakota State Penitentiary, Respondent.

* * * *

ON MOTION FROM THE CIRCUIT COURT OF

THE THIRD JUDICIAL CIRCUIT

CODINGTON COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE KENT SHELTON

Judge

* * * *

JEFF LARSON

Jeff Larson Law, LLP

Sioux Falls, South Dakota Attorneys for petitioner.

JASON RAVNSBORG

Attorney General

PATRICK J. MCCANN

Codington County State’s Attorney

Watertown, South Dakota Attorneys for respondent.

* * * * 

CONSIDERED ON MOTION

ON JUNE 27, 2019

OPINION FILED 08/21/19
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GILBERTSON, Chief Justice

[¶1.] David Asmussen has filed a motion for a certificate of probable cause 

to appeal the denial of habeas corpus relief from his kidnapping convictions. 

Because his habeas claims are clearly procedurally defaulted, we deny the motion. 

Facts and Procedural History

[¶2.] At the conclusion of a jury trial in Codington County in late 2006, 

Asmussen was convicted of two counts of first-degree kidnapping in connection with 

the 2001 disappearance of his girlfriend in Watertown. Asmussen waived counsel 

and exercised his right of self-representation during trial following an advisement 

by the trial court as to the dangers and disadvantages of self-representation. 

Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); State v. 

Van Sickle, 411 N.W.2d 665, 666-67 (S.D. 1987). Asmussen also underwent a pretrial psychiatric examination to establish his ability to understand the dangers and 

disadvantages of self-representation and a pre-trial competency hearing during 

which a psychiatric report indicating that he was competent was accepted into 

evidence.1 

[¶3.] At several points during trial, Asmussen attempted to raise a 

nonsensical defense under the Uniform Commercial Code.2 His attempts were 

 

1. Counsel was appointed to represent Asmussen during the competency 

proceedings but was discharged by Asmussen at the conclusion of those 

proceedings following the trial court’s finding that his waiver of counsel was 

knowing and intelligent. 

2. The Uniform Commercial Code is “[a] uniform statute that governs 

commercial transactions, including sales of goods, secured transactions, and 

(continued . . .)
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rejected by the trial court. Following his conviction, Asmussen was sentenced in 

December 2006 to concurrent life terms for the two kidnapping counts. The 

judgment was filed on January 10, 2007. 

[¶4.] Asmussen did not directly appeal his convictions. In January 2015, he 

filed a pro se petition for a writ of habeas corpus along with motions for the 

appointment of counsel and a waiver of fees. Two attorneys were appointed 

successively to represent him, both of whom eventually withdrew for conflicts of 

interest. Asmussen’s current counsel filed an amended application for a writ in 

September 2017. The amended application alleged violations of Asmussen’s rights 

to counsel and of due process, as well as a claim that his sentence was cruel and 

unusual. The State moved to dismiss because Asmussen failed to file his 

application within the two-year statute of limitations for habeas corpus actions in 

SDCL 21-27-3.3.3 The motion was granted at the end of 2018.4 Asmussen’s motion 

________________________

(. . . continued)

negotiable instruments.” Uniform Commercial Code, Black’s Law Dictionary 

(11th ed. 2019).

3. SDCL 21-27-3.3 provides in relevant part:

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; [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.

4. By that time, Circuit Judge Shelton had replaced retired Circuit Judge 

Erickson on the habeas matter.
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for a certificate of probable cause for appeal from the habeas court was denied, and 

Asmussen moved for a certificate from this Court. 

Analysis and Decision

[¶5.] Issuance of a certificate of probable cause generally requires “a 

substantial showing of the denial of a constitutional right.” Ashley v. Young, 2014 

S.D. 66, ¶ 8, 854 N.W.2d 347, 350 (quoting Lange v. Weber, 1999 S.D. 138, ¶ 9, 602 

N.W.2d 273, 275). However, the standard is modified when a habeas claim is 

denied on procedural grounds. As explained in Khaimov v. Crist, 297 F.3d 783, 786 

(8th Cir. 2002):5

[W]hen a [habeas] claim is denied on procedural grounds, 

our reading of [Slack v. McDaniel, 529 U.S. 473, 484-85, 

120 S. Ct. 1595, 1604, 146 L. Ed. 2d 542 (2000)] is that:

1) if the claim is clearly procedurally defaulted, the 

certificate should not be issued; 2) even if the procedural 

default is not clear, if there is no merit to the substantive 

constitutional claims, the certificate should not be issued; 

but, 3) if the procedural default is not clear and the 

substantive constitutional claims are debatable among 

jurists of reason, the certificate should be granted. [Id.]

(Emphasis added.)6

 

5. We have previously found federal court applications of the certificate of 

appealability requirement in federal habeas corpus actions helpful in 

interpreting the certificate of probable cause requirement in state habeas 

corpus actions. See, e.g., Ashley, 2014 S.D. 66, ¶ 7, 854 N.W.2d at 349-50; 

Lange, 1999 S.D. 138, ¶ 9, 602 N.W.2d at 275. 

6. Accord Dansby v. Hobbs, 766 F.3d 809, 840 n.4 (8th Cir. 2014) (“When a claim 

is dismissed based on procedural default, a certificate [of appealability] 

should be granted only where there is a debatable constitutional claim and a 

debatable procedural ruling.”); Ward v. Hobbs, 738 F.3d 915, 916 (8th Cir. 

2013) (“Before granting a certificate of appealability on a procedural issue, a 

district court should determine ‘both that jurists of reason would find it 

debatable whether the petition states a valid claim of the denial of a 

(continued . . .)
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[¶6.] Asmussen’s habeas claims are “clearly procedurally defaulted[.]” See 

Khaimov, 297 F.3d at 786. This is a case like Hughbanks v. Dooley, 2016 S.D. 76, 

887 N.W.2d 319, where because Asmussen’s criminal judgment was final over two 

years before the effective date of SDCL 21-27-3.3 (the statute of limitations enacted 

in 2012), his ability to commence his habeas action was immediately cut off by the 

statute.7 To avoid a potential due process violation with such a result,8 this Court 

held in Hughbanks that for individuals like Asmussen, the two-year statute of 

limitations should not begin to run until July 1, 2012 (the effective date of the 

statute). Id. ¶ 22, 887 N.W.2d at 326. While this gave Asmussen until July 1, 2014, 

to commence his action, he did not commence it until January 2015, approximately 

six months late. This was a clear procedural default.

[¶7.] Asmussen argues that the statute of limitations did not begin to run 

until he was appointed counsel who could recognize the “factual predicate[s]” for his 

habeas claims. See SDCL 21-27-3.3(4) (delaying commencement of the habeas 

corpus statute of limitations until the date of discovery of the factual predicate of 

the claim or claims). Asmussen contends that he was unable, with due diligence, to 

________________________

(. . . continued)

constitutional right, and that jurists of reason would find it debatable 

whether the district court was correct in its procedural ruling.’” (quoting 

Khaimov, 297 F.3d at 785)).

7. In fact, both Asmussen’s and Hughbanks’s convictions became final in 2007. 

Hughbanks, 2016 S.D. 76, ¶ 2, 887 N.W.2d at 320. 

8. Id. ¶ 9, 887 N.W.2d at 322 (noting that “[w]hen . . . a limitations period is . . . 

shortened or created . . . federal due process requires that potential litigants 

be afforded a reasonable time for the commencement of an action before the 

bar takes effect” (quoting 54 C.J.S. Limitations of Actions § 16 (2016)). 
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recognize what needed to be done to preserve his issue for appeal until he received 

this later assistance from legal counsel. Since counsel was not appointed for him 

until after he commenced his habeas action in 2015, Asmussen argues that this 

action was timely. 

[¶8.] This Court has not yet interpreted the phrase “factual predicate” in 

SDCL 21-27-3.3(4), but in Hughbanks, we noted that “SDCL 21-27-3.3 is patterned 

after the statute of limitations for federal habeas corpus actions.” 2016 S.D. 76, ¶ 

10, 887 N.W.2d at 322. We further recognized that SDCL 21-27-3.3 was enacted 

almost sixteen years after the federal act and contains language nearly verbatim to 

the federal act. Id. ¶ 19, 887 N.W.2d at 325. Therefore, we applied our rules of 

statutory interpretation and construed SDCL 21-27-3.3 consistent with federal 

authorities. Id.

[¶9.] We again look to federal authorities for support here. In Owens v. 

Boyd, 235 F.3d 356, 359 (7th Cir. 2000), the petitioner made an argument very 

similar to one made by Asmussen here, namely that the federal habeas statute of 

limitations does not begin to run until a prisoner “actually understands what legal 

theories are available.” In rejecting this argument, the federal court held that if the 

statute of limitations employed a subjective rather than an objective standard, 

“there would be no effective time limit” for commencing a habeas action. Id. The 

First Circuit Court of Appeals similarly concluded that discovery of the “factual 

predicate” refers only to discovery of “evidentiary facts or events, and not court 
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rulings or legal consequences of the facts.” Holmes v. Spencer, 685 F.3d 51, 59 (1st

Cir. 2012) (quoting Brackett v. United States, 270 F.3d 60, 69 (1st Cir. 2001)).9 

[¶10.] Based on our review of the federal authorities, we likewise employ an 

objective standard when applying our state statute. The timeframe from which 

SDCL 21-27-3.3(4) begins to run is when the facts (rather than the legal basis) 

giving rise to potential claims are either known or could have been discovered with 

due diligence.

[¶11.] Asmussen’s habeas claims were predicated on the adequacy and timing 

of trial court advisements as to the dangers and disadvantages of selfrepresentation, on the trial court’s failure to appoint standby counsel to advise him 

during trial, and on his sentence. Therefore, Asmussen knew the evidentiary facts 

or events supporting his claims at the time his judgment was entered in 2007. The 

fact that he may not have understood the legal consequences of those facts or how to 

preserve legal claims based thereon does not delay commencement of the statute of 

limitations in SDCL 21-27-3.3(4). Therefore, his habeas claims remain “clearly 

procedurally defaulted” under the statute. See Khaimov, 297 F.3d at 786.

[¶12.] Motion for certificate denied.

[¶13.] KERN, JENSEN, SALTER, and DEVANEY, Justices, concur.

 

9. See also Martin v. Fayram, 849 F.3d 691, 696 (8th Cir. 2017) (“Knowledge of 

the ‘vital facts’ of a claim may be distinct from knowledge of their ‘legal 

significance.’” (quoting Owens, 235 F.3d at 359)); Klein v. Franklin, 437 F. 

App’x 681, 684 (10th Cir. 2011) (unpublished) (holding that the habeas 

“limitations period begins to run when the petitioner knows of the facts 

giving rise to the habeas claim; it is not required that he or she understand 

the legal significance of those facts”).