State of South Dakota
LEGISLATIVE ASSEMBLY, 2012
HOUSE ENGROSSED NO. SB 42 - 2/21/2012
Introduced by: The Committee on Judiciary at the request of the Office of the Attorney
FOR AN ACT ENTITLED, An Act to revise certain provisions regarding habeas corpus.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. That § 21-27-3.1 be amended to read as follows:
An application for relief Proceedings
under this chapter
may be filed at any time
except that proceedings thereunder
cannot be maintained while an appeal from the applicant's
conviction and sentence is pending or during the time within which such appeal may be
Section 2. That § 21-27-3.2 be repealed.
21-27-3.2. An application under this chapter may be dismissed if it appears that the state or
the applicant's custodian has been prejudiced in its ability to respond to the application by delay
in its filing, unless the applicant shows that the application is based on grounds of which he
could not have had knowledge by the exercise of reasonable diligence before the circumstances
causing the prejudice occurred. It shall be presumed that the state or the applicant's custodian
has been prejudiced if the application is filed more than five years after signing, attestation and
filing of the judgment or order under which the applicant is held. This presumption is rebuttable
pursuant to § 19-11-1.
Section 3. That chapter 21-27 be amended by adding thereto a NEW SECTION to read as
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;
(2) The date on which the impediment to filing an application created by state action in
violation of the constitution or laws of the United States or of this state is removed,
if such impediment prevented the applicant from filing;
(3) The date on which the constitutional right asserted in the application was initially
recognized by the Supreme Court of the United States or the Supreme Court of this
state if the right has both been newly recognized and is retroactively applicable to
cases on collateral 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.
Section 4. That § 21-27-4 be amended to read as follows:
21-27-4. If a person has been committed, detained, imprisoned, or restrained of
under any color or pretense whatever, civil or criminal, and if upon application made in good
faith to the court or judge thereof, having jurisdiction, for a writ of habeas corpus, it is
satisfactorily shown that the person is without means to prosecute the proceeding, the court or
judge shall, if the judge finds that such appointment is necessary to ensure a full, fair, and
appoint counsel for the indigent person pursuant to chapter 23A-40. Such
counsel fees or expenses shall be a charge against and be paid by the county from which the
person was committed, or for which the person is held as determined by the court. Payment of
all such fees or expenses shall be made only upon written order of the court or judge issuing the
writ. The ineffectiveness or incompetence of counsel, whether retained or appointed, during any
collateral post-conviction proceeding is not grounds for relief under this chapter.
Section 5. That chapter 21-27 be amended by adding thereto a NEW SECTION to read as
A claim presented in a second or subsequent habeas corpus application under this chapter
that was presented in a prior application under this chapter or otherwise to the courts of this state
by the same applicant shall be dismissed.
Before a second or subsequent application for a writ of habeas corpus may be filed, the
applicant shall move in the circuit court of appropriate jurisdiction for an order authorizing the
applicant to file the application.
The assigned judge shall enter an order denying leave to file a second or successive
application for a writ of habeas corpus unless:
(1) The applicant identifies newly discovered evidence that, if proven and viewed in light
of the evidence as a whole, would be sufficient to establish by clear and convincing
evidence that no reasonable fact finder would have found the applicant guilty of the
underlying offense; or
(2) The application raises a new rule of constitutional law, made retroactive to cases on
collateral review by the United States Supreme Court and the South Dakota Supreme
Court, that was previously unavailable. The grant or denial of an authorization by the
circuit court to file a second or subsequent application shall not be appealable.
Section 6. That § 21-27-16.1 be repealed.
21-27-16.1. All grounds for relief available to a petitioner under this chapter shall be raised
in his original, supplemental or amended application. Any ground not raised, finally adjudicated
or knowingly and understandingly waived in the proceedings resulting in his conviction or
sentence or in any other proceeding that the applicant has taken to secure relief from his
conviction, or sentence, may not be the basis for a subsequent application, unless the court finds
grounds for relief asserted which for reasonable cause were omitted or inadequately raised in
the original, supplemental, or amended application.