United States Court of Appeals

For the Eighth Circuit

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No. 18-2376

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Charles Russell Rhines

lllllllllllllllllllllPetitioner - Appellant

v.

Darin Young, Warden, South Dakota State Penitentiary

lllllllllllllllllllllRespondent - Appellee

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American Civil Liberties Union; American Civil Liberties Union of South Dakota;

GLBTQ Legal Advocates and Defenders; Lambda Legal Defense and Education

Fund; National Center for Lesbian Rights; National LGBT Bar

lllllllllllllllllllllAmici on Behalf of Appellant

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Appeal from United States District Court

for the District of South Dakota - Rapid City

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 Submitted: September 26, 2019

Filed: October 25, 2019

[Published]

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Before LOKEN, GRUENDER, and KELLY, Circuit Judges. 

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PER CURIAM.

Charles Russell Rhines is an inmate at the South Dakota State Penitentiary,

sentenced to death for the March 1992 murder of Donnivan Schaeffer at a donutshop

inRapid City, South Dakota. Rhines has exhausted all direct appeals and applications

for state and federal post-conviction relief. See Rhines v. Young, 899 F.3d 482 (8th

Cir. 2018). As briefed to this court in the fall of 2018 and argued to our panel in

September, this appeal raises the question whether the district court erred in

concluding that it has no authority under 18 U.S.C. § 3599 and the All Writs Act, 18

U.S.C. § 1651(a), to order South Dakota prison officials “to allow Rhines to meet

with mental health experts retained by appointed counsel for purposes of preparing

a clemency application.”

Following oral argument, a majority of the panel tentatively concluded that we

should affirm the district court. However, circumstances underlying the issue have

changed, and we conclude that a decision on this narrow issue is no longer needed. 

We were advised by counsel for appellee earlier this year (i) that the South Dakota

Board of Pardons and Paroles denied Rhines’s petition for clemency in December

2018, and (ii) that the Circuit Court for the 7th Judicial Circuit of South Dakota has

issued a warrant for Rhines’s execution during the week of November 3-9, 2019. 

Whether Rhines deserves clemency is now properly in the hands of the Governor. 

South Dakota law grants the Governor broad constitutional and statutory

clemency authority. See Doe v. Nelson, 680 N.W.2d 302, 313 (S.D. 2004). Rhines

has begun the statutory process under S.D.C.L. § 24-14. The Governor may consider

any and all evidence she deems necessary to make her final decision, including the

absence of relevant expert evaluations and tests. The Supreme Court has cautioned

that, while “some minimal procedural safeguards apply to clemency proceedings,”

judicial intervention in state clemency proceedingsis warranted only in rare, extreme

cases. Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 289 (1998) (O’Connor,

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J., concurring in part and concurring in the judgment). At the present time, with

South Dakota clemency proceedings commenced and the time for granting or denying

imminent, the issues raised by Rhines in this appeal are either moot or have not been

fully exhausted. Accordingly, we dismiss the appeal. 

KELLY, Circuit Judge, concurring.

The question presented to us in this case was whether a federal court has the

authority to compel the State of South Dakota to allow Rhines accessto mental health

experts retained by his appointed counsel for purposes of preparing a clemency

application. Based on the record before us, however, it appears that Rhines has not

fully exhausted his clemency-based remedies. 

The South Dakota constitution grants the Governor the pardon power, S. D.

Const. art. IV, § 3, but the state’s statutory scheme permits the Governor to delegate

to the Board of Pardons and Parolesthe authority to hear such applications. See Doe,

680 N.W.2d at 313 (South Dakota has a “two-pronged pardon system: a pardon

granted by the Governor with input from the Board . . . or a pardon granted solely by

the Governor with no outside involvement . . . .”). The parties have informed us that

in December 2018 the Board declined to recommend Rhines for clemency. Thus, as

the court notes, whether Rhinesis deserving of clemency is now properly in the hands

of the Governor.

The parties have identified no impediments to Rhines’s asking the Governor

to allow him access to his mental health experts, either in the course of considering

the Board’sfailure to recommend clemency or in connection with a clemency request

made directly to the Governor. It thus appears that Rhines still has an opportunity to

seek and obtain relief by means of the State’s statutory and/or constitutional

framework. For this reason, I concur in the court’s judgment. 

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