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2008 SD 22 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

ROSCOE PRIMEAUX, Petitioner and Appellant, 

 v. 

BOB DOOLEY, Warden, Mike 

Durfee State Prison, Springfield, 

South Dakota, Respondent and Appellee. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE FIRST JUDICIAL CIRCUIT 

CHARLES MIX COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE GLEN W. ENG 

Judge 

* * * * 

KEITH GOEHRING Attorney for petitioner 

Parkston, South Dakota and appellant. 

 

LAWRENCE E. LONG 

Attorney General 

FRANK GEAGHAN 

Assistant Attorney General Attorneys for respondent 

Pierre, South Dakota and appellee. 

* * * * 

 CONSIDERED ON BRIEFS 

 ON FEBRUARY 11, 2008 

 OPINION FILED 03/19/08 
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KONENKAMP, Justice 

[¶1.] Petitioner was convicted by a jury in 1981 of second degree murder and 

two counts of aggravated assault. Over the next two decades, he filed several 

requests for writs of habeas corpus in both state and federal court. In this appeal 

on his second habeas petition in state court, petitioner argues that he was denied 

his constitutional right to have a jury composed of a fair cross section of the 

community. The habeas court denied petitioner’s request for relief, concluding that 

although there was some disparity it was not sufficient to violate his constitutional 

rights. He appeals, and we affirm. 

Background 

[¶2.] In December 1981, Roscoe Primeaux was convicted by a jury of second 

degree murder and two counts of aggravated assault. He was sentenced to life 

without the possibility of parole for the second degree murder conviction, four years 

in prison for the first aggravated assault conviction, and six years for the second. 

The four and six year sentences were to run concurrently with his life sentence. 

Primeaux appealed his convictions, and this Court affirmed. State v. Primeaux, 328 

NW2d 256 (SD 1982). 

[¶3.] Primeaux then filed several requests for writs of habeas corpus in 

federal and state courts. In 1984, he filed a petition in federal district court 

asserting that (1) his life sentence constituted cruel and unusual punishment, and 

(2) the South Dakota state court did not have jurisdiction to convict him. The 

petition was dismissed without prejudice because he had not yet asserted the issues 

in state court. In 1988, Primeaux filed another petition in federal court, but later 
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requested that it be dismissed because he had not exhausted his state-court 

remedies. Later that same year, he filed a petition in state court claiming that his 

trial counsel was ineffective for various reasons. After the habeas court denied his 

petition, he appealed to this Court asserting that (1) his trial counsel was 

ineffective; (2) the habeas court erred when it did not appoint a psychologist for the 

habeas proceeding; and (3) the state court did not have jurisdiction over him. This 

Court reviewed his claims and denied habeas relief in Primeaux v. Leapley, 502 

NW2d 265 (SD 1993). 

[¶4.] In 1994, Primeaux filed a petition in federal court advancing 

essentially the same issues asserted in his state-court petition. The federal district 

court denied his claims, and the Eighth Circuit Court of Appeals affirmed. 

Primeaux again challenged the state’s jurisdiction over him by filing another 

habeas petition in federal court in 1996. The petition was dismissed because all 

parties stipulated that the state had jurisdiction. In 2004, Primeaux filed another 

petition in federal court asserting, among other things, that his constitutional rights 

were violated because the jury that convicted him did not represent a fair cross 

section of the community and that one of the Native American jurors was excluded 

with a preemptory challenge on an improper basis under Batson v. Kentucky, 476 

US 79, 106 SCt 1712, 90 LEd2d 69 (1986). The federal court denied his petition 

because he failed to comply with 28 USC 2244(b)(2) and (b)(3)(A), which required 

him to assert these claims in his previous federal habeas applications or provide an 

order from the court of appeals granting the federal district court permission to 

consider the successive application. 
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[¶5.] In 2005, Primeaux brought another habeas corpus action in state 

court. In his supplemental petition, he asserted that (1) his constitutional rights to 

an impartial jury were violated because the jury panel did not represent a fair cross 

section of the community; (2) his equal protection rights were violated because one 

juror was excluded solely on account of the juror’s race; and (3) he was denied his 

right to effective assistance of counsel when his trial attorney failed to object to the 

makeup of the jury panel and the exclusion of a juror because of that juror’s race. 

The State responded that Primeaux’s petition should be dismissed because (1) 

under SDCL 21-27-3.2, the State is prejudiced by the application being twenty-five 

years after the filing of the judgment and conviction; (2) res judicata and collateral 

estoppel bar relief because Primeaux failed to raise these issues in his previous 

habeas petition; (3) Batson does not apply retroactively; and (4) SDCL 21-27-16.1 

prohibits the filing of successive habeas petitions where there is no reasonable 

cause for the petitioner’s failure to raise the issues in a previous petition. 

[¶6.] A hearing was held in November 2006. The habeas court examined 

whether (1) Primeaux received effective assistance of counsel in his previous habeas 

corpus proceedings; and (2) the selection of the jury violated his constitutional 

rights. Findings of fact and conclusions of law and an order were issued denying 

the petition. According to the court, Primeaux “did not present any evidence 

regarding the effectiveness of counsel on the prior habeas corpus attack.” Further, 

the court found that despite a disparity on the jury panel, it had “no reason to 

believe that the low representation of Native Americans on the jury selection panel 
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was in any way done intentionally, or done as a blocking on account of that person’s 

race.” 

[¶7.] Primeaux appeals asserting that he was “unconstitutionally denied his 

right to have a jury drawn from a fair cross section of the community during his 

December 1981, jury trial.” 

Standard of Review 

[¶8.] Our standard of review on habeas corpus is well established: 

Habeas corpus is a collateral attack on a final judgment, and 

therefore our scope of review is limited. Lodermeier v. Class, 

1996 SD 134, ¶3, 555 NW2d 618, 621. A habeas applicant bears 

the initial burden to establish a colorable claim for relief. 

Jenner v. Dooley, 1999 SD 20, ¶11, 590 NW2d 463, 468. 

Accordingly, the State has only the burden of meeting the 

petitioner’s evidence. Davi v. Class, 2000 SD 30, ¶26, 609 NW2d 

107, 114. The habeas court’s factual findings are reviewed 

under the clearly erroneous standard, while legal conclusions 

are reviewed de novo. Meinders v. Weber, 2000 SD 2, ¶5, 604 

NW2d 248, 252 (citations omitted). 

Rodriguez v. Weber, 2000 SD 128, ¶12, 617 NW2d 132, 138. 

Analysis and Decision 

[¶9.] The State first asserts that Primeaux’s petition should be dismissed 

under SDCL 21-27-16.1, because there is no factual or legal reason why he was 

prevented from challenging the jury selection process in his first petition for a writ 

of habeas corpus filed in state court in 1988. Primeaux contends that SDCL 21-27-

16.1 does not bar his request for relief because he was denied effective assistance of 

counsel. He also asserts that since the issue of whether the jury selection process 

violated his constitutional rights is meritorious and has not yet been considered, 

SDCL 21-27-16.1 should not apply. 
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[¶10.] “Grounds not raised in the original application cannot be raised in a 

subsequent application unless the court finds ‘reasonable cause’ for their omission 

from the original application.” Goodroad v. Weber, 2003 SD 132, ¶4, 671 NW2d 

838, 839 (citation omitted). To establish reasonable cause, Primeaux must show: 

(1) “[c]ause for his omission or failure to previously raise the grounds for habeas 

relief;” and (2) “[a]ctual prejudice resulting from the alleged constitutional 

violation.” See Gregory v. Solem, 449 NW2d 827, 830 (SD 1989) (citing Wainwright 

v. Sykes, 433 US 72, 97 SCt 2497, 53 LEd2d 594 (1977)); see also Jackson v. Weber, 

2001 SD 30, ¶11, 637 NW2d 19, 22. Cause, according to the United States Supreme 

Court, “does not turn on whether counsel erred or on the kind of error counsel may 

have made.” Murray v. Carrier, 477 US 478, 494, 106 SCt 2639, 2648, 91 LEd2d 

397 (1986). Rather, if the representation by habeas counsel is not ineffective under 

Strickland, then “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. 

(citing Strickland v. Washington, 466 US 668, 104 SCt 2052, 80 LEd2d 674 (1984)). 

Examples offered by the Court include: “a showing that the factual or legal basis 

for a claim was not reasonably available to counsel, see Reed v. Ross, 468 US [1, 16, 

104 SCt 2901, 2910, 82 LEd2d 1 (1984)] or that ‘some interference by officials,’ 

Brown v. Allen, 344 US 443, 486, 73 SCt 397, 422, 97 LEd 469 (1953), made 

compliance impracticable[.]” Id.

[¶11.] Primeaux has not established cause for omitting the jury selection 

issue in his 1988 state-court habeas petition. He presented no evidence to the 
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habeas court to establish that his previous habeas counsel was ineffective, thereby 

justifying his failure to earlier assert the issue. While in his brief to this Court, 

Primeaux contends that his previous habeas counsel was ineffective, he has failed to 

support this assertion. Because Primeaux has not established that his previous 

habeas counsel was ineffective, he must identify “some objective factor external to 

the defense [that] impeded counsel’s efforts to comply with the State’s procedural 

rule.” See Murray, 477 US at 494, 106 SCt at 2648, 91 LEd2d 397. This he has not 

done. There is no factual or legal basis to show that his right to challenge the jury 

selection process was unavailable to him in 1988, as his constitutional right to have 

a jury representing a fair cross section of the community existed when he was 

convicted, when he brought his direct appeal to this Court, and when he filed his 

first habeas petition. Moreover, Primeaux makes no claim that interference by any 

official precluded him from asserting this issue previously. Therefore, Primeaux 

has not satisfied the cause prong of the cause and prejudice test, and SDCL 21-27-

16.1 bars consideration of the jury selection issue.*

[¶12.] Even if Primeaux was not barred from asserting his jury cross section 

issue, his claim would be unpersuasive. In St. Cloud v. Class, this Court examined 

* The habeas court did not specifically bar Primeaux’s petition under SDCL 21-

27-16.1. However, it did note that Primeaux could not continually seek relief 

on individual issues by filing repeated habeas petitions. In its oral ruling, 

the court said that it was examining “whether you can continually challenge 

through a habeas corpus petition decisions that have already been made. . . . 

It is and has been the determination of the courts of this land, both the 

United States and the South Dakota Supreme Court, that basically you must 

examine all of the matters on a collateral attack. You do not get to 

individually take each of them, take a run at it and then turn around when 

one fails, to make another argument that you hope will free you.” 
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the same issue asserted by Primeaux, and upheld the State’s jury selection process. 

See 1996 SD 64, 550 NW2d 70. In St. Cloud, we were asked to examine the 

constitutionality of the makeup of a 1989 jury. Id. ¶7. We wrote: 

To establish a prima facie challenge, the defendant must show 

that: 

(1) the group excluded is a “distinct” group in the community; 

(2) the representation of this group in the jury pool is not fair 

and reasonable in relation to the number of such persons in the 

community; 

(3) this underrepresentation is due to the systematic exclusion of 

the group from the jury-selection process. 

Id. ¶10 (quoting State v. Lohnes, 432 NW2d 77, 83-84 (SD 1988) (citing Duren v. 

Missouri, 439 US 357, 363, 99 SCt 664, 668, 58 LEd2d 579 (1979); Turner v. Fouche, 

396 US 346, 90 SCt 532, 24 LEd2d 567 (1970))). 

[¶13.] In this case, the first element is satisfied, as the State does not dispute 

that Native Americans are a distinct group. In regard to the second element, the 

habeas court found that the evidence established that 16.9 percent of the population 

of Charles Mix County at the time of Primeaux’s trial was Native American, and 

fifty-four people were on the jury panel, three being Native American. Therefore, 

according to the court, Native Americans represented 5.5 percent of the jury panel, 

creating an 11.4 percent disparity. 

[¶14.] Despite the disparity identified by the habeas court, the State contends 

that Primeaux failed to prove that the under representation was unfair or 

unreasonable. In particular, the State relies on St. Cloud, where we held that a 

12.5 percent disparity was not unfair or unreasonable in relation to the number of 
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persons in the community. See 1996 SD 64, ¶¶19-21, 550 NW2d at 75-76. In 

response, Primeaux relies on several federal cases and contends that a disparity of 

over 10 percent satisfies the second prong. See United States v. Garcia, 991 F2d 

489 (8thCir 1993); United States v. Clifford, 640 F2d 150 (8thCir 1981); United 

States v. White Lance, 480 FSupp 920 (DCSD 1979). 

[¶15.] In State v. Hall, we recognized that the United States Supreme Court 

had not identified what percent constituted a constitutional violation, but that “an 

absolute percentage difference of fifteen percent or more would require 

supplementation of the jury panel.” 272 NW2d 308, 310-11 (SD 1978) (citing United 

States v. Test, 550 F2d 577 (10thCir 1976); Foster v. Sparks, 506 F2d 805 (5thCir 

1975)). In light of the fact that a 15 percent disparity required supplementation, in 

St. Cloud, we held that an absolute disparity of 12.5 percent did not establish under 

representation that was unreasonable. 1996 SD 64, ¶¶20-21, 550 NW2d at 76. 

[¶16.] Similarly, the disparity in Primeaux’s case of 11.4 percent does not 

amount to unfair and unreasonable under representation sufficient to satisfy the 

second prong. Moreover, despite the disparity, the under representation was not 

the result of any inherent discrimination in the jury selection process or systematic 

exclusion of Native Americans. South Dakota’s former process for selecting 

prospective jurors by using the list of registered voters was previously reviewed and 

accepted in St. Cloud, 1996 SD 64, ¶¶22-26, 550 NW2d at 76-77, and Clifford, 640 

F2d at 155-56. Neither Court found a systematic exclusion of Native Americans 

from South Dakota juries in violation of defendants’ constitutional rights. 

According to the court in Clifford, “The mere fact that one identifiable group of 
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individuals votes in a lower proportion than the rest of the population does not 

make a jury selection system illegal or unconstitutional.” 640 F2d at 156. Then, in 

St. Cloud, we acknowledged the holding in Clifford and other federal cases, and 

found that the State’s jury selection process did not systematically exclude Native 

Americans. 1996 SD 64, ¶¶22-26, 550 NW2d at 76-77. 

[¶17.] Primeaux’s final claim is that his constitutional right to a fair and 

impartial jury was violated because the Charles Mix County Auditor did not follow 

SDCL 16-13-1 through SDCL 16-13-10 when he, alone, selected the persons for the 

master jury list for his trial. This argument also is precluded. Although Primeaux 

did present this issue in his petition for a writ of habeas corpus, he failed to seek 

any ruling from the habeas court. “[N]o error is preserved for review on appeal 

when the court below fails to rule on a matter presented for decision.” State v. 

Sickler, 334 NW2d 677, 679 (SD 1983) (citing American Fed. Sav. & Loan Ass’n v. 

Kass, 320 NW2d 800, 803 (SD 1982)). See also State v. Nelson, 1998 SD 124, ¶7, 

587 NW2d 439, 443 (citations omitted) (“Issues not advanced at trial cannot 

ordinarily be raised for the first time on appeal.”). 

[¶18.] Affirmed. 

[¶19.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and 

MEIERHENRY, Justices, concur.