Whitepipe v. Weber, 2007 DSD 27

BRYAN W. WHITEPIPE,
Petitioner,
v.
DOUGLAS WEBER,
Warden, South Dakota State Penitentiary,
Respondent.
[2007 DSD 27]

U.S. District Court
District of South Dakota--Central Division
Civ. No. 06-3018

SUPPLEMENTAL REPORT AND RECOMMENDATIONS
FOR DISPOSITION OF PETITION UNDER 28 USC §2254
FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY

Bryan Ward Whitepipe, Pro se

Gary R. Campbell, Asst Attorney General, Pierre, SD
Attorney for Respondent.

Dated May 21, 2007

Moreno, Mark A., United States Magistrate Judge

[¶1] After the instant case was referred, this Court issued a Report and Recommendation, Docket No. 15, and then amended it to correct an inadvertent typographical error, Docket No. 22. Petitioner, Bryan W. Whitepipe ("Whitepipe"), moved to extend the time period to reply and file objections to the Report, Docket Nos. 19, 25 and 28, and he was granted leave to do so by both the District Court and this Court, Docket Nos. 20, 25, 30. Whitepipe also moved for a stay and abeyance order to allow him to present his unexhausted federal claims to the state court, Docket No. 24. Upon being directed by the District Court to handle the stay and abeyance motion on a report and recommendation basis, this Court then gave Whitepipe more than 10 weeks within which to make the required showing under Rhines v. Weber, 544 US 269, 277-78 (2005) for a stay and abeyance order, Docket Nos. 26, 30. On March 19, 2007, Whitepipe filed objections and a reply to the Report, Docket No. 32. Respondent, Douglas Weber, Warden of the South Dakota State Penitentiary ("State") thereafter filed a timely response to the objections and reply, Docket No. 33.

[¶2] This Supplemental Report and Recommendations augments the Report and Recommendation previously issued by the Court, a copy of which is attached hereto and incorporated herein by reference, and addresses Whitepipe's objections and assignments of error as well as his stay and abeyance motion. The reason for making the initial Report a part of this Report and for attaching it herewith is to provide a single consolidated set of the Court's factual findings and legal discussion for review. It is hoped that doing so will make the review process easier and help expedite the same.

I.

[¶3] Whitepipe first objects to the Court's summary of the procedural history of the case and its descriptions of the various claims for relief he raised in state and federal courts. The summary and descriptions, however, are fairly recited, fully supported by the record and need not be disturbed. They shall therefore remain as written.

II.

[¶4] Whitepipe next objects to the Court's rendition of the relevant facts because, he says, the same is based on "false statements deliberately presented as true" and "perjured testimony." There is no basis for this objection and Whitepipe failed to properly develop the underpinnings for it in the state habeas proceedings. His conclusory allegations that the State's trial witnesses testified untruthfully have little support in the record. Indeed, medical records do not contradict, in any significant manner, the testimony of the victim, Margaret ("Mitzi") Hacker. And, Gregory County Sheriff Damon ("Charlie") Wolf and Hacker's accounts of what Whitepipe said, as well as Whitepipe's own statements to Sheriff Wolf, are at odds with the allegations Whitepipe now makes.

[¶5] As for Whitepipe's allegation that Hacker recanted in a telephone call to him at the jail, there is no evidence to support this allegation or, for that matter, that such a call was ever made. Instead, the record shows that Whitepipe called Hacker from jail and offered to buy her groceries if she did not testify against him.

III.

[¶6] Whitepipe objects to the Court's determinations that the appointment of counsel and an evidentiary hearing are not warranted or necessary.

[¶7] Whitepipe has no constitutional or statutory right to counsel in a habeas proceeding such as this one. Morris v. Dormire, 217 F3d 556, 558 (8th Cir.), cert. denied, 531 US 984 (2000). His §2254 petition does not raise complex legal and factual issues or ones that require further fact investigation. McCall v. Benson, 114 F3d 754, 756 (8th Cir. 1997); Hoggard v. Purkett, 29 F3d 469, 471-72 (8th Cir. 1994). He has clearly demonstrated, through his submissions, a threshold ability to articulate his claims and to represent himself. {fn1} McCall, 114 F3d at 756.

[¶8] Similarly, the factual basis for some of Whitepipe's claims was sufficiently developed in state court. As to these claims, a federal court must defer to the state court's findings of fact. 28 USC §2254(e)(1).

[¶9] With respect to those claims he failed to develop in state court, Whitepipe has no right to an evidentiary hearing because he was unable to satisfy the requirements of §2254(e)(2)(A). Schriro v. Landrigan, No. 05-1575, 2007 WL 1387923 at *9 (U.S. May 14, 2007). Regardless, Whitepipe has failed to establish that he has a convincing claim of innocence under §2254(e)(2)(B), see Williams v. Taylor, 529 US 420, 435 (2000), and that, in any event, such a hearing would enable him to develop a factual record that would entitle him to habeas relief under the Anti-Terrorism and Effective Death Penalty Act (AEDPA). Schriro, 2007 WL 1387923 at **6-11.{fn2}

[¶10] For these reasons, and those explained earlier in its Report and Recommendation, Docket No. 15 at 6-11, the Court believes that neither the appointment of counsel nor an evidentiary hearing would be meaningful or is called for in this instance.

IV.

[¶11] As a further objection, Whitepipe seems to suggest that state court factual and legal determinations are subject to de novo review by federal courts. Whitepipe, however, is not entitled to relief on any of his claims that were adjudicated on the merits in state court unless the adjudication of such claims "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 USC §2254(d)(1).

[¶12] Here, the state court did not apply a rule that contradicts governing law (established by the Supreme Court) or, when confronted with a set of facts that were materially indistinguishable from a decision of the Supreme Court, nonetheless arrive at a different result. See Penry v. Johnson, 532 US 782, 792 (2001); Collier v. Norris, Nos. 06-2519, 06- 2630, 2007 WL 1109311 at *4 (8th Cir. Apr. 16, 2007). Nor did the state court apply the governing legal rule incorrectly and in an objectively unreasonable manner. Penry, 532 US at 793; Collier, 2007 WL 1109311 at *4.

[¶13] While the factual findings of the state court may be challenged in a §2254 proceeding, they are subject to a much more deferential standard of review. Kinder v. Bowersox, 272 F3d 532, 538 (8th Cir. 2001). The state court's factual findings are "presumed to be correct" and can only be rebutted by "clear and convincing evidence" to the contrary. Rice v. Collins, 126 SCt 969, 974 (2006); Kinder, 272 F3d at 538. Having applied these precepts to the case at hand, the Court is confident that the adjudications made in state court did not result in a decision that was based on an unreasonable determination of the facts in light of the evidence that was presented. See Rice, 126 SCt at 974.

[¶14] Exercising the requisite "limited and deferential review" that is called for by the AEDPA, see Evenstad v. Carlson, 470 F3d 777, 78 1-82 (8th Cir. 2006), the Court finds and concludes that Whitepipe is not entitled to federal habeas relief on any of his claims.

V.

[¶15] Whitepipe's next objection, that Sheriff Wolf gave perjured testimony and forged Whitepipe's name to the Miranda consent card, is wholly without merit. Whitepipe's perjury/forgery claims were waived when his guilty plea was accepted by the trial court, see United States v. Smith, 422 F3d 715, 724 (8th Cir. 2005), cert. denied, 126 SCt 1112 (2006); State v. Hoeft, 1999 SD 24, ¶12, 594 NW2d 323, 326, and are now defaulted and unreviewable{fn3}, see Clay v. Norris, No. 06-1157, 2007 WL 1201753 at ** 1-3 (8th Cir. Apr. 25, 2007); Interiano v. Dormire, 471 F3d 854, 856-57 (8th Cir. 2006); Armstrong v. Iowa, 418 F3d 924, 925-26 (8th Cir. 2005), cert. denied, 126 SCt 1351 (2006). In addition, given the state court record, the evidence that Whitepipe's guilty plea was knowing, voluntary and intelligent and made after a valid waiver of his rights and the lack of any credible evidence to substantiate his perjury and forgery claims, there is no reason to delve into and/or overturn the state court's factual and legal determinations and grant him §2254 relief.

VI.

[¶16] Whitepipe next objects to the Court's recommendation that he be denied relief on his habitual offender claim. Whitepipe claims that because he was never convicted of the underlying forgery offense (that was used as a basis for the habitual offender charge) the trial court lacked subject matter jurisdiction over the charge. Whitepipe also claims that the state's attorney engaged in prosecutorial misconduct by vindictively "using the habitual offender charge to intimidate [him] into accepting a plea agreement." He further claims that trial and appellate counsel were ineffective by not raising these claims in state court.

[¶17] Whitepipe's ineffective assistance claim, however, is procedurally barred and not cognizable. Whitepipe failed to present the claim to the state court in a manner required by state procedural rules. And, the Supreme Court has made clear that a procedurally defaulted ineffective assistance of counsel claim cannot serve as "cause" to excuse the procedural default of another habeas claim unless the petitioner can satisfy the "cause and prejudice" standard of the ineffective assistance claim itself. Edwards v. Carpenter, 529 US 446, 451-53 (2000). {fn4}

[¶18] Here, allowing Whitepipe to now use an ineffective assistance of counsel claim, which itself is procedurally defaulted, as "cause" to excuse his habitual offender claim, which he has also procedurally defaulted, would permit a federal court to take steps toward upsetting a state court conviction without giving the state courts an opportunity to address those claims in the first instance. Edwards, 529 US at 451; Carrier, 477 US at 489. To do so would undermine the very principles of comity and federalism the doctrines of exhaustion and procedural default are rooted in. It would likewise allow a habeas petitioner to escape from the deference accorded to state court rulings under the AEDPA, because there would be no state court ruling for a federal court to give deference to. Even more anomalous is that it would permit a claim for "cause", never raised before in state court, to occupy a more favorable position in federal court than a claim for "cause" that was raised in state court.

[¶19] In any event, Whitepipe's underlying due process claim has no merit. His guilty plea to the forgery offense led to a suspended imposition of sentence, a sentence the state court had the jurisdictional authority under the state Constitution to impose. See State v. Shempp, 498 NW2d 618, 620 (SD 1993); State v. Huftile, 367 NW2d 193, 195-96 (SD 1985); SDCL 23A-27-13. The South Dakota Supreme Court has plainly held that a suspended imposition of sentence may be used to enhance the penalty for a subsequent criminal law violation{fn5}. State v. Marnette, 519 NW2d 35, 38 (SD 1994); State v. Winchester, 438 NW2d 555 (SD 1989). Whitepipe's habitual offender claim has no legal basis whatsoever.

[¶20] The same is true of Whitepipe's vindictive prosecution claim. This claim falls squarely within and is foreclosed byBorden/ircher v. Hayes, 434 US 357 (1978) and its progeny. In Borden/ircher, the defendant was charged with uttering a forged instrument in the amount of $88.30, an offense then punishable by a term of two to ten years in prison. 434 US at 358. During plea negotiations, the prosecutor expressly indicated that if the defendant did not plead guilty to the forgery charge, the prosecutor would seek an indictment under a habitual offender statute which would subject the defendant to a mandatory sentence of life imprisonment. Id. at 358-59. The defendant refused to plead guilty, went to trial, was convicted of both the forgery and habitual offender charges and received a life sentence. Id. at 359. The Supreme Court, however, held that despite the threat made by the prosecutor during plea negotiations, the defendant's due process rights were not violated. Id. at 365. In doing so, the Court had this to say:

It is not disputed here that [the defendant] was properly chargeable under the recidivist statute, since he had in fact been convicted of two previous felonies. In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion. Within the limits set by the legislature's constitutionally valid definition of chargeable offenses, "the conscious exercise of some selectivity and enforcement is not in itself a federal constitutional violation" so long as "the selection was [not] deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification." To hold that the prosecutor's desire to induce a guilty plea is an "unjustifiable standard," which, like race or religion, may play no part in his charging decision, would contradict the very premises that underlie the concept of plea bargaining itself. Moreover, a rigid constitutional rule that would prohibit a prosecutor from acting forthrightly in his dealings with the defense could only invite unhealthy subterfuge that would drive the practice of plea bargaining back into the shadows from which it has so recently emerged.

Id. at 364-65 (footnote and citations omitted). Whitepipe, while faced with unpleasant alternatives, was nonetheless free to reject the plea bargain made by the state's attorney, continue on with his trial, and if convicted of one or more of the underlying offenses, insist on being tried on the habitual offender charge. There being no showing of presumptive or actual vindictiveness, Whitepipe cannot not succeed on his due process claim. See United States v. Vest, 125 F3d 676, 678-79 (8th Cir. 1997), cert. denied, 528 US 1029 (1999); Nguyen v. United States, 114 F3d 699, 704-05 (8th Cir. 1997); United States v. Jacobs, 4 F3d 603, 604-05 (8th Cir. 1993).

VII.

[¶21] Whitepipe objects to the Court's recommended disposition of his Brady claim. Whether couched in terms of a Brady violation or dressed up as an ineffective assistance of counsel one, Whitepipe has procedurally defaulted his claim and failed to provide the necessary "cause" and "prejudice" to excuse his default. Edwards, 529 US at 450-53 & n.3; Interiano, 471 F3d at 856-57; Armstrong, 418 F3d at 925-26; Docket No. 15 at 17-18 & nn. 7-8 (Report and Recommendation (Dec. 5, 2006)).

[¶22] Aside from this, the references Whitepipe points to, in the emergency room records, to further support his Brady argument, do little to aid his cause. Whether or not he had consentual sex with Hacker the day before kidnapping, raping and assaulting her, while relevant, is by no means exonerating. The same is true of any discrepancy as to when Hacker lost consciousness given all that she went through. Moreover, the relevance of DNA results in this case, when Hacker was vaginally penetrated with a beer bottle is, at best, obscure. See Evenstad, 470 F3d at 784-85 (evidence not material); Collier, 2007 WL 1109311 at * *5-7 (no resulting prejudice).

[¶23] It must be remembered that Whitepipe pled guilty to a rape offense. His decision to do so was motivated by a desire to limit his exposure and was not the result of the withholding of material evidence of guilt or bad faith gamesmanship on the part of the state's attorney. Whitepipe's arguments fly in the face of his own prior state court statements and the evidence of record and provide him no basis for the issuance of a writ of habeas corpus. Id.

VIII.

[¶24] Whitepipe objects to the Court's findings and recommended disposition of his claims relating to the propriety of the jury selection process and his decision to plead guilty to raping Hacker.

[¶25] Generally, a petitioner who enters a valid and unconditional guilty plea is barred from challenging a pre-plea constitutional violation in a subsequent federal habeas corpus proceeding. Tollett v. Henderson, 411 US 258, 266-67 (1973); Iron Wing v. United States, 34 F3d 662, 664 n. 2 (8th Cir. 1994). The petitioner, however, may contend that his guilty plea was not voluntary and intelligent, see Hill v. Lockhart, 474 US 52, 56 (1985); Boykin v. Alabama, 395 US 238, 242-43 (1969), or contend that the advice he received from his trial counsel was ineffective under the Sixth Amendment, Tollett, 411 US at 267; McMann v. Richardson, 397 US 759, 771 (1970). See also Bass v. United States, 739 F2d 405, 406 (8th Cir. 1984) ("after a guilty plea, the focus of collateral attack is limited to the nature of counsel's advice and the voluntariness of the plea"). As the Supreme Court has recognized:

When a criminal defendant has solemnly admitted in open court he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standard set forth in McMann.

Tollett, 411 US at 267.

[¶26] Thus, only a petitioner's pre-plea claims that attack the voluntary and intelligent character of his plea are cognizable under §2254. To the extent that the petitioner challenges his trial counsel's advice, he may only present claims relating to the plea advice; claims relating to pre-plea advice are barred. Tollett, 411 US at 267; see also Moran v. Godinez, 57 F3d 690, 700 (9th Cir. 1994), overruled on other grounds in Lockyer v. Andrade, 538 US 63 (2003).

[¶27] Here, Whitepipe's ineffective assistance claims do not implicate the voluntary or intelligent nature of his plea, nor do they question trial counsel's advice regarding that plea. Although Whitepipe suggests that his counsel's purportedly deficient performance frustrated him, thus indirectly contributing to his strategic decision to plead guilty rather than continue on with his trial, such implications fall far short of alleging that counsel's erroneous advice contributed to an involuntary and unknowing plea. Whitepipe does not contend that counsel's advice regarding him pleading guilty was erroneous.{fn6} Indeed, the record reflects that Whitepipe initiated plea negotiations and accepted the plea agreement, not because of inaccurate advice from his counsel, but rather, to avoid a sentence that potentially could have been much longer than the one he received. As such, any pre-plea irregularities Whitepipe now alleges were waived when he entered his guilty plea in state court. Tollett, 411 US at 266-67; see also Thundershield v. Solem, 565 F2d 1018, 1026-27 (8th Cir. 1977), cert. denied, 435 US 954 (1978).{fn7}

[¶28] Regardless, Whitepipe's claim that his guilty plea was coerced by and the product of a corrupt jury selection process, a process which he never objected to, is inconsistent with both his behavior in court when he entered his plea and the testimony of his trial counsel at the state habeas hearing. The jury selection procedure that was utilized did not have a racially skewing effect and had no influence on Whitepipe's decision to plead guilty. The state habeas court found that Whitepipe's testimony to the contrary was not credible. Whitepipe's right to a fundamentally fair trial was not violated. Cody v. Solem, 755 F2d 1323, 1333-35 (8th Cir.), cert. denied, 474 US 833 (1985); see also Coury v. Livesay, 868 F2d 842, 845 (6th Cir. 1989). Nor can it be said on this record, especially given the lack of any data relating to Gregory County or to Whitepipe's own jury, that he was a victim of racial underrepresentation or discrimination. Singleton v. Lockhart, 871 F2d 1395, 1397-99 (8th Cir.), cert denied, 493 US 874 (1989); State v Aesoph, 2002 SD 71, ¶¶ 43-45, 647 NW2d 743, 757-58.

[¶29] Whether by virtue of the rule in Tollett or based on an insufficient showing on the merits, Whitepipe cannot prevail on any of his jury selection claims.{fn8}

IX.

[¶30] Whitepipe's objections relating to his guilty plea, including the State's purported failure to honor the provisions of the plea agreement, the trial court's alleged failure to advise him of his rights or the consequences of his guilty plea and the court's supposed "premature" acceptance of the plea, are legally and factually unfounded.

[¶31] At the outset, Whitepipe' s claims have all been procedurally defaulted and he has failed to provide the "cause" and "prejudice" needed to excuse his default. Ante at 10. The Court is therefore foreclosed from reviewing them.

[¶32] Addressing the merits nonetheless, the record indicates that the state's attorney lived up to the terms of the plea agreement and that Whitepipe unmistakably understood the terms of it and knowingly and voluntarily accepted the same. Trussell v. Bowersox, 447 F3d 588, 591 (8th Cir.), cert. denied, 127 SCt 583 (2006); United States v. Granados, 168 F3d 343, 345 (8th Cir. 1999); Nguyen, 114 F3d at 703. The letter from the state's attorney (Whitepipe has belatedly tried to supplement the record with) concerned a pretrial plea offer (that he implicitly rejected by deciding to go to trial) and did not provide the basis for the actual plea agreement that was later entered into. There was no agreement that the State would recommend either an indeterminate sentence of between 5 and 15 years or a specific number of years, despite Whitepipe's attempt now to manufacture one. The state's attorney's own words at the sentencing hearing speak for themselves:

[THE STATE'S ATTORNEY]: ... As part of the plea agreement, I agreed that I would not stand up here and say he gets 25 -- I wanted him to get 25 years or 15, and I will not do that. I did reserve the right to present evidence, and make observations or argument to you at this hearing. And that's where I will confine my arguments to. {fn9}

(Emphasis added).

[¶33] Unlike the situation in United States v. Crusco, 536 F2d 21, 24-26 (3d Cir. 1976), there was no misunderstanding as to the maximum sentence Whitepipe faced (which he ultimately did not receive), nor was there a broken promise. Trussell, 447 F3d at 591. The State did not stray from or go beyond that which it promised Whitepipe and thus he has no room to complain. United States v. Miller, 565 F2d 1273, 1275 (3d Cir. 1977), cert. denied, 436 US 959 (1978); United States v. Bradford, 461 F. Supp.2d 904, 917-18 (N.D. Iowa 2006); see also Lafferty v. United States, No. Civ. 05-30003, 2007 WL 1202747 at ** 3-4 (DSD Apr. 20, 2007).

[¶34] As to the alleged deficiencies that occurred during Whitepipe's change of plea, the record reflects that the trial court painstakingly explained his constitutional rights to him and the consequences of entering a guilty plea. Whitepipe's insistence that the court accepted his plea before advising him of his rights is based on semantics, not facts. A review of the record reveals that after discussing the terms of the plea agreement with Whitepipe and his trial counsel, the court stated that it "would" accept the agreement. The court then advised Whitepipe of his rights and the consequences of pleading guilty, determined that his plea was voluntary and that a factual basis existed for the same and after doing so, accepted his plea and found him guilty.

[¶35] Whitepipe asserts that his trial counsel lied, or at least misinformed him, about his parole eligibility. Whitepipe's bald and unsubstantiated assertions, however, are insufficient to satisfy Strickland's "prejudice" requirement. Whitepipe did not allege in his §2254 petition that, had trial counsel correctly informed him about his parole eligibility date, he would have pled not guilty and insisted on going to trial. {fn10} Nor has he alleged, even in his objections, any special circumstances that might support the conclusion that he placed particular emphasis on his parole eligibility in deciding whether or not to plead guilty. Moreover, Whitepipe's mistaken belief that he would become eligible after serving six months of his prison sentence would seem to have affected not only his calculation of the time he likely would serve if sentenced under the plea agreement, but also his calculation of the time he likely would serve if he went to trial and was convicted. Inasmuch as Whitepipe has failed to allege, whether in his petition or otherwise, the kind of "prejudice" necessary to satisfy the second prong of the Strickland test, he is not entitled to an evidentiary hearing, as he maintains, or to habeas relief on his ineffective assistance assertion. See Hill, 474 US at 60; see also Mabry v. Johnson, 467 US 504, 509-11 (1984); Bucheit v. Norris, 459 F3d at 852-53.

[¶36] Lastly, Whitepipe asserts that the trial court and trial counsel's failure to advise him of the state requirement that he would have to register as a sex offender, if convicted of the proffered rape offense, deprived him of his constitutional rights. Most courts have held, however, that registration as a sex offender, is a collateral, not a direct, consequence of a guilty plea that a defendant need not be advised of, see Bagras v. Burns, 179 F3d 1207, 1216-17 (9th Cir.), cert. denied, 529 US 1073 (2000) (trial court not required to advise the defendant that he would have to appear before a state psychiatric panel for an evaluation prior to being released on parole); Gore v. Andrews, No. 96-6093, 1996 WL 627323 at *2 (10th Cir. Oct. 30, 1996) (the sex offender registration requirement is a collateral consequence of the defendant's plea and counsel's failure to inform him of it cannot rise to the level of ineffective assistance); State v. Timperley, 1999 SD 75, ¶17, 599 NW2d 866, 869 (trial court's failure to advise the defendant about registration as a sex offender is not grounds for withdrawal of a guilty plea), and the Court agrees with their rationale for doing so. In view of the collateral nature of the registration requirement, it matters not whether Whitepipe was informed of the requirement.

X.

[¶37] Whitepipe makes a number of objections concerning the sexual offender evaluation the trial court ordered that he submit to before sentencing. Whitepipe, however, has failed to show that the court erred, much less committed error that infringed on a specific constitutional protection or that was so prejudicial as to amount to a denial of due process. Bucklew v. Luebbers, 436 F3d 1010, 1018 (8th Cir.), cert. denied, 127 SCt 725 (2006); see also Evanstad, 470 F3d at 782-84. The court was authorized under state law to order the evaluation, see SDCL 23A-27-6; State v. Arguello, 502 NW2d 548, 556 (SD 1993); State v. Grosh, 387 NW2d 503, 508-9 (SD 1986), and the rules of evidence (which Whitepipe claims were not followed) do not apply to state sentencing proceedings, see SDCL 19-9-14(4); State v Stevenson, 2002 SD 120, ¶15, 652 NW2d 735, 740-41; State v. Huettl, 379 NW2d 298, 304 (SD 1985); see alsoFed. R. Evid. 1101(d)(3).11(11)

[¶38] The objections raised are grounded, in large part, on Whitepipe's contention that his participation in the preparation of a presentence investigation report, which included a sexual offender evaluation, violated his Fifth, Sixth and Eighth Amendment rights. These contentions, however, were at no time ever presented to the state court and are procedurally barred now from review. Ante at 10. Whitepipe's Fifth (and related Miranda) and Sixth Amendment contentions are, in any event, plainly without merit. State v. Kauk, 2005 SD 1, ¶¶8-19, 691 NW2d 606, 608-11 (citing numerous federal cases); see also United States v. Archambault, 344 F3d 732, 736 n.4 (8th Cir. 2003) (the Sixth Amendment does not apply to routine presentence interviews); United States v. Leonti, 326 F3d 1111, 1119-20 (9th Cir. 2003) (relying on the non-adversarial nature of presentence interview). Likewise, his Eighth Amendment contention has no factual or legal basis and must fall by the wayside as well. {fn12} Because Whitepipe has failed to establish a specific federal constitutional violation or undue prejudice, and because the contentions he now makes are procedurally barred or have no merit, his objections must be overruled.

XI.

[¶39] Whitepipe's objections to the Court's recommended disposition of his racial animus claims must also be overruled because they are based on supposition and conjecture, are contradicted by the record and have no merit whatsoever. Contrary to his claims, the trial court did not refuse to release Whitepipe on bond because he is Indian, but rather, did so because:

1. He was charged with several violent offenses (rape, kidnapping and aggravated assault) and with being a habitual offender;

2. He was on felony probation at the time he allegedly committed the offenses;

3. He contacted Hacker, while in jail, and asked her to remain silent about the offenses;

4. He was a risk of flight; and

5. He was a danger to one or more persons or to the community.

The seriousness of the offenses charged, an alleged probation violation, obstruction or intimidation of a perspective witness, risk of flight and dangerousness to others are all relevant considerations in determining whether a defendant should be detained or released on bail. United States v. Montalvo-Murillo, 495 US 711, 719-22 (1990); United States v. Salerno, 481 US 739, 746-55 (1987); Bell v. Wolfish, 441 US 520, 534 & n.15 (1979); see also 3 W. LaFave, J. Israel & N. King, Criminal Procedure, §§12.3(a), (c) - (g), §12.4(e) (2d. ed. 1999 & 2007 Supp.). Beyond this, the record reflects that Whitepipe was given a suspended imposition of sentence for his forgery offense, which is hardly an indication of racial animosity toward him. And, despite the violence he perpetrated on Hacker over the several-day period of captivity, the court nonetheless did not impose the maximum penalty on him for the rape crime he pled guilty to.

[¶40] Racism played no part in Whitepipe's state case. He has failed to make any credible showing that racial bias affected his prosecution. United States v. Armstrong, 517 US 456, 465 (1996). This being the case, Whitepipe's objections, and the claims upon which they are based, cannot be sustained.

XI.

[¶41] In the last numbered paragraph of his objections, Whitepipe reiterates his earlier request, made in a separate motion, that his federal petition be held in abeyance to allow him to present his unexhausted claims in state court. The Court delayed its decision on Whitepipe's request to afford him an opportunity to make the required showing, under Rhines, 544 US at 277-78; see also Atkins v. Kenney, 410 F3d 451, 456 (8th Cir. 2005).

[¶42] The AEDPA requires that a habeas petitioner give the state court the first opportunity to consider his federal constitutional claims. See 28 USC §2254(b). This long-standing exhaustion requirement is not jurisdictional, but "reflects the policy of federal-state comity ... designed to give the [s]tate an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Picard v. Connor, 404 US 270, 275 (1971); see also O'Sullivan v. Boerckel, 526 US 838, 845 (1999) ("the rule of comity reduces friction between the state and federal court systems by avoiding the 'unseem[liness]' of the federal district court's overturning a state-court conviction without the state courts having an opportunity to correct the constitutional violation in the first instance.") (alteration in original). The State rightly argues that Whitepipe has failed to exhaust several of his claims.

[¶43] The Court must decide how to deal with the claims Whitepipe has not presented in state court. Whitepipe wants his federal proceedings held in abeyance to allow state, and later federal, consideration of his claims. The State asserts that state procedural law forecloses both state and federal review of these claims. The Court finds and concludes that Whitepipe has not shown that federal or state review is available for his unexhausted claims.

[¶44] Citing Rose v. Lundy, 455 US 509 (1982), Whitepipe contends that he should be allowed to return to state court to pursue his unexhausted claims. Under Lundy, a mixed petition that is, one that raises both exhausted and unexhausted claims is subject to a "total exhaustion" rule that requires the dismissal of any petition containing unexhausted claims. 455 US at 522. Lundy, however, contemplated that the habeas petitioner could return to federal court after the requisite exhaustion. Slack v. McDaniel, 529 US 473, 486 (2000). Aside from reaffirming Lundy 's total exhaustion requirement, see §2254(b), the AEDPA imposes a strict one-year limitations period, see 28 USC §2244(d)(1), that does not toll the pendency of federal proceedings, see Duncan v. Walker, 533 US 167, 173-74, 181-82 (2001). "As a result of the interplay between AEDPA's 1-year statute of limitation and Lundy 's dismissal requirement, petitioners who come to federal court with 'mixed' petitions run the risk of forever losing their opportunity for any federal review of their unexhausted claim." Rhines, 544 US at 275. Thus, a federal petitioner, who files a timely petition containing unexhausted claims, risks Lundy dismissal after the limitation period runs, thereby potentially closing the door to all federal review.

[¶45] Perhaps recognizing this procedural dilemma, Whitepipe does not ask for the dismissal of his federal petition without prejudice. Instead he seeks a stay-and-abeyance safety valve so that he can obtain consideration of his unexhausted claims.{fn13}

[¶46] In Rhines, the Supreme Court authorized a limited stay-and-abeyance practice in federal court to allow for the development of meritorious claims while at the same time preserving the AEDPA's concern for finality and expediency. Id. at 278. Rhines by no means requires federal courts to stay every petition that contains unexhausted claims. Rather, Rhines gives district courts discretionary stay-and-abeyance authority when a petitioner demonstrates that (1) there was good cause for failing to exhaust his claims in state court; (2) his unexhausted claims are not "plainly meritless"; and (3) he has not intentionally engaged in dilatory tactics. Id. at 277.

[¶47] Whitepipe received one full round of state review. He made no effort there, either by primary review or in a successive habeas proceeding, to advance the many claims he raises for the first time now in federal court. For several reasons, the Court believes that a stay and abeyance is not appropriate here.

[¶48] First, Rhines prohibits the stay and abeyance of federal proceedings when "a petitioner engages in abusive litigation tactics or intentional delay[.]" Id. at 278. A petitioner should request a stay early on in the federal case, preferably by filing a "protective" petition with the federal court and then expeditiously moving for a stay thereafter. Pace v. DiGuglielmo, 544 US 408, 416 (2005). Whitepipe filed his federal petition on August 24, 2006. He waited about four months to file his motion for a stay and abeyance. By the time the motion was filed, the parties had extensively briefed the legal and factual issues of the case and the Court had issued a 36-page report and recommendation that addressed these issues. Further delay of the case "frustrates AEDPA's objective of encouraging finality by allowing a petitioner to delay the resolution of the federal proceedings" and "also undermines AEDPA's goal of streamlining federal habeas proceedings[.]" Rhines, 544 US at 277. As an equitable remedy designed to soften the harsh strictures of the AEDPA, stay and abeyance should only be available when a petitioner shows diligence and alacrity in making such an extraordinary request. Whitepipe's sluggish and after-the-fact request to return to state court militates against granting him a stay and abeyance.

[¶49] Second, Whitepipe does not show good cause for failing to raise his unexhausted claims in state court. His claims are based on well-settled legal principles and factual predicates that were readily discoverable. Nothing about or inherent in the structure of South Dakota's post-conviction review process thwarted Whitepipe's efforts to bring these claims before the state courts. He could have raised the claims in his state proceedings. He could have also filed a skeletal federal petition and then promptly sought protection under Rhines. See Pace, 544 US at 416. Instead, he blames his state habeas counsel for not advancing the claims earlier.

[¶50] The Supreme Court has not yet determined whether ineffective assistance of habeas counsel provides "good cause" in the stay-and-abeyance context. In other procedural areas, such as a the cause-and-prejudice gateway for overcoming a procedural bar, the Supreme Court and the Eighth Circuit have not looked favorably on blaming prior habeas counsel for not exhausting claims.{fn14} Coleman, 501 US at 752-54; Interiano, 471 F3d at 856-57; Armstrong, 418 F3d at 927. Even if ineffective assistance of habeas counsel constitutes "good cause" under Rhines, Whitepipe has not shown that counsel's representation was deficient. At best, the record indicates that counsel did not raise certain claims -- a situation that arises any time a petitioner includes unexhausted claims in his federal petition. Whitepipe has not demonstrated that counsel's failure to raise the unexhausted issues was because of inaptitude, neglect or strategic decision making. Nor has he submitted any evidence, despite being given the opportunity to do so, from which the Court could find that the requisite "good cause" exists to excuse his failure to exhaust his claims in state court.

[¶51] Third, the exhaustion requirement, including the stay-and-abeyance safety valve to it, is predicated on the availability of state court remedies. §2254(b)(1). South Dakota strictly enforces its procedural bar rule (codified at SDCL 21-27-16.1) and generally prohibits the filing of successive habeas applications. {fn15} Although § 21-27-16.1 allows for the filing of a successive application in limited circumstances, Whitepipe does not allege that he meets any of the requirements for doing so. The claims he now raises could have easily been presented in his state habeas applications. And, he does not provide a viable argument that he is actually innocent of the rape offense he pled guilty to. {fn16} See Cagle v. Norris, 474 F3d 1090, 1099 (8th Cir. 2007). Because South Dakota would apply its procedural law to prohibit the filing of a successive state application, staying and holding in abeyance Whitepipe's federal petition would serve only to insert needless delay into these proceedings.

[¶52] Finally, Whitepipe has not made a compelling showing that, if presented to the state courts, his unexhausted claims would entitle him to habeas relief. Or, stated another way, that he would prevail in state court on any of these claims.

[¶53] Because Whitepipe does not meet the Rhines factors and/or because he has not shown that a state habeas avenue of relief remains open to him, his stay and abeyance motion/request should be denied.

XII.

[¶54] Based on the findings of fact and legal discussion set forth herein and in the initial Report and Recommendation, as amended, Docket Nos. 15, 22, and pursuant to 28 USC §636(b) and Rule 8(b) of the Rules Governing §2254 Cases in the United States District Courts ("§2254 Rules"), it is hereby

[¶55] RECOMMENDED that Whitepipe's Objections, Docket No. 32, be overruled. It is further

[¶56] RECOMMENDED that Whitepipe's Motion for a stay and abeyance of his §2254 petition, Docket No. 24, be denied. It is further

[¶57] RECOMMENDED that Whitepipe's Petition for a writ of habeas corpus, Docket No. 1, be dismissed in its entirety and with prejudice.

Endnotes

1. Whitepipe attended the University of South Dakota for two and-a-half years and, at the time of his sentencing, had only 12 credits left to complete his degree in Criminal Justice/Political Science.

2. Because "the record refutes [Whitepipe's] factual allegations [and] otherwise precludes habeas relief [the Court] is not required to hold an evidentiary hearing." 2007 WL 1387923 at *6.

3. Whitepipe contends that the State's failure or refusal to provide him with transcripts of the suppression hearing and arraignment in Gregory County Cr. No. 01-39 (the forgery case) is sufficient "cause" to excuse his defaulted claim. Transcripts of these proceedings are not in the record, but could have been ordered by him before his change of plea in Gregory County Cr. No. 02-2 1 (the rape case) or his state habeas hearing when he had counsel representing him. Without knowing what was said during the proceedings and why transcripts of them were never prepared, the Court is in no position now to decide whether the Supreme Court's "cause", or for that matter, "prejudice" requirements have been met. See Coleman v. Thompson, 501 US 722, 752-54 (1991) ("cause"); Brecht v. Abrahamson, 507 US 619, 638 (1993) ("prejudice"); see also
Murray v. Carrier, 477 US 478, 485-92 (1986).

Whitepipe also contends that there is evidence (testimony from Sheriff Wolf and a tape recording) "proving" that Whitepipe was never advised of his Miranda rights. The record, however, is devoid of any such evidence.

4. Edwards was not the first case to address the attempted use of an unexhausted claim as "cause" to excuse a procedural default. In Carrier, 477 US at 488-89, the Supreme Court observed that a habeas petitioner must present his claim of ineffective assistance of counsel to the state courts as an independent claim before he may use it to establish "cause" to excuse the procedural default of another claim. But it was not until Edwards that the Supreme Court ruled that the failure to properly exhaust the ineffective assistance claim actually resulted in the procedural default of the claim being asserted as "cause", thereby completely barring that claim from being used to excuse the procedural default of the underlying claim.

5. While it is true that under SDCL 23A-27-13 a defendant is not found guilty or convicted of an offense, even so, SDCL 23A-27-15 specifically provides that any suspended imposition of sentence imposed under § 23A-27-13 shall be considered a prior conviction for purposes of determining whether the defendant is a habitual offender.

6. Whitepipe was able to avoid the kidnapping, aggravated assault and all but one of the rape charges and a potential sentence of life imprisonment without parole. Under these circumstances, it would be extremely difficult, if not impossible, for Whitepipe to establish that trial counsel's implicit advice to accept a plea agreement rather than proceed to trial and thereby risk multiple convictions and a much longer sentence, was deficient as a matter of fact and law.

7. In its initial Report and Recommendation, the Court cited United States v. Castillo, 464 F3d 988, 989-90 (9th Cir. 2006) in its discussion and application of the Tollett rule. Docket No. 15 at 21. On January 22, 2007 (approximately a month and-a-half after the Report was filed), the Ninth Circuit Court of Appeals entered an order granting rehearing en banc of the panel decision in Castillo, thereby making that decision of no precedential value. Accordingly, the Court withdraws its citation to Castillo at this time.

8. Through a pro bono memorandum prepared by his state habeas counsel, Whitepipe argues that the trial court's use of SDCL 16-13-43, rather than SDCL 16-13-42, in the jury selection process was structural error. According to Whitepipe, his trial counsel should have objected to this error and counsel's failure to do so constituted ineffective assistance.

In conducting habeas review, a federal court is limited to deciding whether the decisions by the South Dakota courts were "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." 28 USC §2254(d)(1) (emphasis added). The Supreme Court has stressed that the phrase "Federal law, as determined by the Supreme Court," refers to "the holdings, as opposed to dicta, of this Court's decisions," and has cautioned that §2254(d)(1) "restricts the source of clearly established law to this Court's jurisprudence." Taylor, 529 US at 412. Therefore, it is not enough for Whitepipe to argue that the state courts misapplied state law. To obtain habeas relief, he must be able to point to the Supreme Court precedent he thinks the state courts acted contrary to or unreasonably applied. See Buchhert v. Norris, 459 F3d 849, 853 (8th Cir. 2006), cert. denied, 127 SCt 1372 (2007); Owsley v. Bowers ox, 234 F3d 1055, 1057 (8th Cir. 2000), cert. denied, 534 US 903 (2001).

Whitepipe has not met his burden. The only Supreme Court decision he cites to in support of his position, Arizona v. Fulminante, 499 US 279 (1991), is not even ajury selection case. More importantly, the state courts' decisions were not "contrary to" and did not involve an "unreasonable application of," the holding in that case or other clearly established law of the

Supreme Court. Instead, Whitepipe's argument boils down to an issue of state law (that, upon cursory review, does not appear to rest in his favor, see State v. Iron Necklace, 430 NW2d 66, 77 (SD 1988); State v. Christians, 381 NW2d 214, 215 (SD 1986); State v. Rodden, 86 SD 725, 726-27, 201 NW2d 232, 233-34 (1972); SDCL 16-13-31) and his attempt to recast the issue in a constitutional light (structural error and ineffective assistance of counsel) is unavailing.

9. At the rearraignment, the following exchange took place with respect to the State's sentencing recommendation:

[DEFENSE COUNSEL]: ... And that the State will not recommend a specific number of years at sentencing, and will not oppose any reasonable year request from the defense. I don't think we established reasonable, but I think we both have I've talked to [Whitepipe] about what I think is reasonable and I think the State and I can handle that. And I fully I have recommended that to [Whitepipe] and he has agreed to it ... .

THE COURT: All right.

[THE STATE'S ATTORNEY]: Can I add something before we get too far? While I won't oppose a specific recommendation of years by the defense, I am still allowed to point out facts to the Court that I feel are aggravating circumstances for the crime that he is going to plead to today, as they are entitled to point out mitigating factors. …

DEFENSE COUNSEL]: Correct.

THE COURT: Mr. Whitepipe, you've heard the plea agreement that was outlined by your attorney and the state's attorney; is that your understanding of the plea agreement?

THE DEFENDANT: Yes.

THE COURT: It is also my understanding that the State will not recommend a number of years the number of years in the Penitentiary. But that they will get to submit to the Court any argument or evidence as to any aggravating factors, is that your understanding?

THE DEFENDANT: Yes.

THE COURT: And then the State will not oppose your request for a reasonable number of years, and that you will have the opportunity to submit any evidence or testimony that mitigates this sentence. Is that your understanding?

THE DEFENDANT: Yes.

THE COURT: All right. The Court will accept that plea agreement.

10. In fact, Whitepipe's ineffective assistance/parole eligibility assertion was raised, for the first time, in his objections to the Court's initial Report and Recommendation. Contrary to Whitepipe's suggestion, the assertion was not contained in or used as a basis for seeking to withdraw his plea prior to sentencing.

11. Whitepipe's reliance on United States v. White Horse, 177 FSupp2d 973 (DSD 2001), aff'd, 316 F3d 769 (8th Cir.), cert. denied, 540 US 844 (2003) is misplaced. There, testimony concerning the defendant's Abel Assessment evaluation was sought to be admitted "during the guilt phase of his case in chief", 177 FSupp2d at 974, not at sentencing as in Whitepipe's case. The former is subject to more strict evidentiary and procedural limitations than the latter. See United States v. Wise, 976 F2d 393, 397-05 (8th Cir. 1992) (en banc), cert. denied, 507 US 989 (1993); see also United States v. Luciano, 414 F3d 174, 178-80 (1st Cir. 2005).

12. In spite of what he alleges, Whitepipe was not prohibited from presenting mitigating evidence relating to the "range and severity of his past criminal conduct, his age and the circumstances surrounding the crime for which he [was] being sentenced."

13. When Whitepipe filed his federal petition, he still had more than five months left before the expiration of the one-year statute of limitations period. That period, however, has since run. See Duncan, 533 US at 181-82 (holding that the limitations period is not tolled while a federal habeas petition is pending); see also Lawrence v. Florida, 127 SCt 1079, 108 1-85 (2007) (holding that the limitations period is likewise not tolled during the pendency of a certiorari petition to the Supreme Court). As a result, if Whitepipe's mixed petition is dismissed at this point, it would likely mean that he would be unable to refile in federal court after exhausting his unexhausted claims the same situation the petitioner in Rhines faced. See 544 US at 272-75; see also Lawrence, 127 SCt at 1085-86 (declining to equitably toll the limitations period to a state habeas petitioner's untimely claims). Compare de la Garza v. Symmes, No. 06-2562 (RHK/JJG), 2006 WL 2095481 at **3-4 (D. Minn. July 27, 2006) ("the concern underlying the Rhines state-and-abeyance rule i.e., the expiration of the federal habeas statute of limitations while a habeas petition is pending in federal court -- is not present in this case").

14. Federal courts have yet to reach a consensus on what constitutes "good cause", within the meaning of Rhines, for failing to exhaust state court remedies. Some courts have adopted the standard for "cause" applicable to procedural defaults which requires that some "objective factor external to the defense" made it impossible to bring the claim earlier in the state court proceedings as required by Coleman, 501 US at 755. See e.g., Carter v. Friel, 415 FSupp2d 1314, 1318 (D. Utah 2006); Fernandez v. Artuz, No. 00 Civ. 7601 KMW AJP, 2006 WL 121943 at *5 (S.D.N.Y. Jan. 18, 2006); Pierce v. Hurley, No. 2:05-CV-392, 2006 WL 143717 at *8 (SD Ohio Jan. 18, 2006); Hernandez v. Sullivan, 397 FSupp2d 1205, 1206 (C.D. Cal. 2005). Others, such as Jackson v. Roe, 425 F3d 654, 662 (9th Cir. 2005) and the remanded Rhines v. Weber, 408 FSupp2d 844, 848-49 (DSD 2005) (Rhines II), have concluded that the "cause" standard of Rhines requires a lesser showing than that necessary to excuse a procedural default. Yet another court has determined that the "good cause" standard falls somewhere between the "lower threshold of unfairness" and the "higher standard of extraordinary circumstances, necessary for equitable tolling in capital cases." See Baker v. Horn, 383 FSupp2d 720, 747 (E.D. Pa. 2005).

There is also a split of authority among federal courts on whether ineffective assistance of post-conviction counsel qualifies as "good cause" to permit a stay of the federal proceedings. Several district courts have found that ineffective assistance of post-conviction counsel did constitute "good cause" for failure to exhaust claims in state court, see e.g. Rhines II, 408 FSupp2d at 848-49; Ramchair v. Conway, No. 04 CV 4241(JG), 2005 WL 2786975 at *16 (E.D.N.Y. Oct. 26, 2005); Boyd v. Jones, No. Civ. 05-73792-DT, 2005 WL 2656639 at *4 (E.D. Mich. Oct. 14, 2005); Fradiue v. Pliler, No. CIV S-00-2209WBSJFM, 2005 WL 2204862 at *2 (E.D. Cal. Sept. 8, 2005), while others have found that alleged ineffective assistance of counsel during post-conviction proceedings did not amount to "good cause", see e.g. Carter, 415 FSupp2d at 1318-19; Vasquez v. Parrott, 397 FSupp2d 452, 464 (S.D.N.Y. 2005); Hubbert v. Renico, No. 04-CV-71018-DT, 2005 WL 2173612 at *3 (E.D. Mich. Sept. 7, 2005).

The division among courts on these issues needs to be resolved by at least the Eighth Circuit if not the Supreme Court. It does not, however, affect this Court's recommendation as to the stay and abeyance issue or the outcome of Whitepipe's federal case.

15. While it is true, as Whitepipe points out, that in Jackson v. Weber, 2001 SD 136, 637 NW2d 19, the South Dakota Supreme Court recognized that ineffective assistance of habeas counsel may overcome the procedural bar of SDCL 21-27-16.1, nonetheless, Jackson is of no help to him. Indeed, the Supreme Court in Jackson made clear that any alleged ineffectiveness of habeas counsel must be directed to errors in the criminal trial or plea of guilty, that is, they must go to the invalidity of the original conviction to escape § 21-27-16.1's procedural bar. 2001 SD 136, ¶17, 637 NW2d at 23; see also Smith v. Weber, 2005 SD 85, ¶22, 701 NW2d 416, 421; Crutchfield v. Weber, 2005 SD 62, ¶21, 697 NW2d 756, 761; Jackson, 2001 SD 136, ¶26, 637 NW2d at 24 (Konenkamp, concurring specially). Whitepipe has not made such a showing, nor can he with any of the claims he has raised. Even assuming, arguendo, that habeas counsel rendered ineffective assistance with respect to some or all of the defaulted claims, Whitepipe still has not shown, nor is he able to show, that the errors he complains of worked to his actual and substantial disadvantage, infecting his trial and plea hearing with error of constitutional magnitude. Jackson, 2001 SD 136 at ¶11, 637 NW2d at 22; see also Smith, 2005 SD 85 at ¶23, 701 NW2d at 421; Crutchfield, 2005 SD 62 at ¶22, 697 NW2d at 761; Goodroad v. Weber, 2003 SD 132, ¶¶4-6, 671 NW2d 838, 839-40; Gregory v. Solem, 449 NW2d 827, 831 (SD 1989).

16. Actual innocence, while not an actionable constitutional claim itself, see Herrera v. Collins, 506 US 390, 400 (1993), may nevertheless act as a gateway for consideration of an otherwise barred constitutional claim, see Schlup v. Delo, 513 US 298, 316 (1995). To make a "credible" actual innocence claim, a petitioner must support his allegations of constitutional error with new reliable evidence whether it be exculpatory, scientific evidence, trustworthy eye witness accounts, or critical physical evidence that was not previously presented. 513 US at 324.
Whitepipe has not presented any such evidence or made any credible showing that he is actually innocent of the crime he was convicted of.