Quevedo v. Sullivan et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CARLOS C. QUEVEDO, 5:22-CV-05021-RAL
Plaintiff,
vs.
DANIEL SULLIVAN, WARDEN, SOUTH
DAKOTA STATE PENITENTIARY; AND
THE ATTORNEY GENERAL OF THE STATE
OF SOUTH DAKOTA,
OPINION AND ORDER DENYING
PETITIONER'S WRIT OF HABEAS
CORPUS AND GRANTING
DEFENDANTS' MOTION TO DISMISS
Defendants.
Plaintiff Carlos Quevedo ("Quevedo") pled guilty in state court to one count of second-
degree murder and received a ninety-year sentence. Quevedo has now filed a petition of habeas
corpus under 28 U.S.C. § 2254 claiming that his sentence was wrongfully imposed under the
Eighth Amendment and that he received ineffective assistance of counsel in violation ofthe Sixth
Amendment. Doc. 1. Defendants Warden Daniel Sullivan ofthe South Dakota State Penitentiary
and the Attorney General of South Dakota("the State")responded, Doc. 10, and filed two motions
to dismiss for failure to state a claim and procedural default. Doc. 11; Doc. 12. For the reasons set
forth below,this Court denies Quevedo's § 2254 petition and grants the State's motions to dismiss.
I. Procedural Background
In February 2017, Quevedo was indicted on alternate counts of first-degree murder, first-
degree murder while engaged in the perpetration of a robbery, and second-degree murder, as well
as first-degree robbery. Doc. 1 at 8; Criminal, 17-242 at 15-16; State v. Quevedo, 947 N.W.2d
1
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402, 404(S.D. 2020). The charges stemmed from the killing of Kasie Lord while Quevedo and
another juvenile were stealing a case of beer from the Loaf'N Jug in Rapid City, South Dakota.
Doc. 11 at 1; Doc. 12 at 1; Doc. 13 at 10; Criminal, 17-242 at 9-10; Quevedo.947 N.W.2d at 403-
04. At the time ofthe incident, Quevedo was seventeen years and four months old, but ultimately
proceeded in adult court. Doc. 1 at 13; Doc. 11 at 1; Doc. 12 at 1; Criminal, 17-242 at 113-14;
Quevedo, 947 N.W.2d at 403. In March 2018, after discussions with counsel, Quevedo decided
to plead guilty as an adult to second-degree murder and, in exchange, the state would drop the
other charges and recommend a term-of-years sentence. Doc. 1 at 8-9; Doc. 1-1 at 4-8; Criminal,
17-242 at 124, 133-34. Quevedo received a sentence of90 years in prison, Doe. 1 at 9; Quevedo.
947 N.W.2d at 406, making him eligible for parole in March 2061, when he will be 62 years old,
5.D. Dep't Corr., Qffender Locator, https://doc.sd.gov/adult/lookup/(last visited Sept. 22, 2022);
Quevedo. 947 N.W.2d at 406.
Qn direct appeal to the Supreme Court of South Dakota, Quevedo raised two issues:
Whether the state court's sentence violated categorical Eighth Amendment sentencing restrictions;
and whether the state court's sentence was grossly disproportionate to his crime in violation ofthe
Eighth Amendment. Doc. 1 at 9; Quevedo. 947 N.W.2d at 406. See generallv Appellant's Brief,
Quevedo. 947 N.W.2d 402(No. 28608), 2019 WL 9512912 (outlining Quevedo's argument on
appeal). The Supreme Court of South Dakota affirmed the imposed sentence. Doc. 1 at 9;
Quevedo. 947 N.W.2d at 411. No ineffective assistance of counsel claim was raised on direct
appeal. Doc. 1 at 9; Doc. 1-1 at 18. See generallv Quevedo. 947 N.W.2d 402(discussing Eighth
Amendment claims only); Appellant's Brief, supra(same).
In April 2021, Quevedo filed a state habeas corpus action contending that his Sixth
Amendment right to effective assistance of counsel was violated based on the advice his trial
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counsel provided and failed to provide regarding the plea agreement. Doc. 1-1 at 2-13; Habeas
Case, 21-540 at 1. A state judge dismissed Quevedo's habeas petition and refused to issue a
certificate ofprobable cause on July 12, 2021. Doc. 1-1 at 29^0; Habeas Case,21-540 at 64-75.
Quevedo then filed a motion for a certificate ofprobable cause and an amended motion on July 21
and July 26, 2021, respectively. Doc. 1-1 at 23-26, 41-46. On July 26, 2021, Quevedo filed a
"notice of appeal" of the decision denying bis petition with the trial court. Doc. 1-1 at 47. The
Supreme Court of South Dakota denied the appeal for failure to comply with SDCL § 21-27-18.1.^
Doc. 1-1 at 49. Quevedo then wrote to state court Judge Craig A. Pfeifle stating that be bad not
received a decision on bis amended motion for probable cause. Doc. 1-1 at 58. Judge Pfeifle
informed Quevedo that bis motion bad been denied. Doc. 1-1 at 59. Quevedo then filed a motion
for probable cause with the Supreme Court of South Dakota on December 3, 2021. Doc. 1-1 at
^ This section ofthe South Dakota Codified Laws states:
A final judgment or order entered under this chapter may not be reviewed by the
Supreme Court of this state on appeal unless the circuit judge who renders the
judgment or a justice of the Supreme Court issues a certificate of probable cause
that an appealable issue exists. A motion seeking issuance of a certificate of
probable cause shall be filed within thirty days from the date the final judgment or
order is entered. The issuance or refusal to issue a certificate of probable cause is
not appealable. However, a party may, upon the circuit court judge's refusal to
issue a certificate of probable cause, file a separate motion for issuance of a
certificate of probable cause with the Supreme Court within twenty days of the
entry of the circuit judge's refusal. Any party filing a motion with the Supreme
Court shall serve a copy ofthe motion upon the opposing party, who shall have ten
days to respond. The applying party shall then have five days to reply to such
response. If a certificate of probable cause is issued the appeal may be brought by
an applicant or the state within thirty days after entry ofthe certificate of probable
cause.
Service of either a motion for a certificate of probable cause or of an appeal must
be made upon both the attorney general and the appropriate state's attorney when
the motion is made or the appeal is taken by the party seeking the habeas corpus
relief.
SDCL § 21-27-18.1. Quevedo's appeal was dismissed because the decision was not
appealable unless Quevedo filed a timely motion for issuance of probable cause with the
Supreme Court of South Dakota. Id.
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50-56. The court denied and dismissed the motion on December 8, 2021, again for failure to
comply with SDCL § 21-27-18.1. Doc, 1-1 at 57. Quevedo sent another letter on December 12,
2021, asking Judge Pfeifle to refile the denial so that he could then file a timely motion for
certificate of probable cause. Doc. 1-1 at 61-62. Judge Pfeifle responded and explained that the
motion was initially not denied as untimely, but rather because of a failure to comply with SDCL
§ 21-27-18.1, so refiling would not solve the issue. Doc. 1-1 at 63-64. Quevedo then made a
request for reconsideration to which Judge Pfeifle did not respond. Doc. 1-1 at 65-66.
Quevedo filed his § 2254 petition with this Court on February 22,2022. Doc. 1. He raises
three issues: 1) whether the circuit court's sentence violated categorical Eighth Amendment
sentencing restrictions; 2) whether the circuit court's sentence was grossly disproportionate to his
crime in violation ofthe Eighth Amendment; and 3)whether he received ineffective assistance of
counsel in violation of his Sixth Amendment rights. Doc. 1 at 6-7, 13. Quevedo petitions the
Court to "vacate [his] conviction and remand for fiarther proceedings." Doc. 1 at 20. The State
moved to dismiss. Doc. 11; Doc. 12,to which Quevedo responded. Doc. 13, and the State replied,
Doc. 15; Doc. 16. This Court now denies Quevedo's petition for writ of habeas corpus and grants
the State's motions to dismiss for the reasons discussed below.
II. Discussion
A. Standard of Review Under § 2254
As amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),
28 U.S.C. § 2254 sets limitations "on the power of a federal court to grant an application for a writ
of habeas corpus on behalf of a state prisoner." Cullen v. Pinholster. 563 U.S. 170, 181 (2011).
"Section 2254(a) permits a federal court to entertain only those applications alleging that a person
is in state custody 'in violation ofthe Constitution or laws or treaties ofthe United States.' Sections
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2254(b) and (c) provide that a federal court may not grant such applications unless, ■with certain
exceptions, the applicant has exhausted state remedies." Id (quoting § 2254).
"If an application includes a claim that has been 'adjudicated on the merits in State court
proceedings,'" additional restrictions apply. Id (quoting § 2254(d)). Section 2254(d) provides
that an application shall not be granted unless adjudication of such a claim:
(1) 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; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). The Supreme Court of the United States has described the § 2254(d) standard
as a "highly deferential standard," "difficult to meet," and demanding "that state-court decisions
be given the benefit of the doubt." Cullen. 563 U.S. at 181 (cleaned up and citations omitted). "A
state court's determination that a claim lacks merit precludes federal habeas relief so long as
'fairminded jurists could disagree' on the correctness of the state court's decision." Harrinsfon v.
Richter, 562 U.S. 86, 101 (2011). The petitioner in a § 2254 case bears the burden of proof.
Cullen, 563 U.S. at 181. However, because § 2254(d)'s demanding standard ofreviewonly applies
if the claim was adjudicated on the merits, when the state court did not resolve the claim on the
merits, federal courts review the petitioner's claim de novo unless the claim was defaulted. See
Worthington v. Roper, 631 F.3d 487,495 (8th Cir. 2011). This Court analyzes in turn each ground
Quevedo raises under § 2254.
B. Grounds for Relief
1. De Facto Life Sentence in Violation of the Eighth Amendment
Quevedo challenges his 90-year sentence based on the Supreme Court ruling in Graham v.
Florida, which found that life in prison -without parole for non-homicide juvenile offenses violates
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the Eighth Amendment, 560 U.S. 48, 71-75 (2010), and Miller v. Alabama, which found "that
mandatory life without parole for those under the age of 18 at the time oftheir crimes violates the
Eighth Amendment's prohibition on 'cruel and imusual punishments,'" 567 U.S. 460,465(2012).
In Graham,a juvenile was sentenced to life imprisonment for armed burglary and 15 years
for attempted armed robbery following a conviction for violation of probation. 560 U.S. at 57.
Because Florida had abolished its parole system, Graham had no possible opportunity for early
release, except executive clemency. Id The Supreme Court used the categorical approach in
analyzing whether the Constitution permits such sentencing schemes. Id. at 61-62(noting that the
challenge was not "to a particular defendant's sentence, but [rather] a sentencing practice itself).
The Supreme Court observed that the age ofthe offender and the nature and circumstances ofthe
crime were important to consider in determining what sentence is appropriate for juveniles. Id at
62-69. The Supreme Court noted many differences between juveniles and adults;juveniles have
an imdeveloped sense of responsibility, are more suseeptible to negative influences, and do not
have fully developed character traits deserving ofthe most severe punishment. Id at 68; see also
Roper V. Simmons. 543 U.S. 551, 569 (2005) (comparing further differences); Thompson v.
Oklahoma, 487 U.S. 815, 835-36 (1988)(same). As for the nature of the offense, the Supreme
Court reiterated thatjuveniles "who do not kill, intend to kill, or foresee that life will be taken are
categorically less deserving" of life imprisonment without parole as compared to murderers.
Graham. 560 U.S. at 69; see also Kennedv v. Louisiana. 554 U.S. 407, 421 (2008)(applying
standard to adult defendant). Finally, penological goals did not justify juvenile sentences of life
without parole because juveniles are less culpable and less susceptible to deterrence, and because
a State should not predetermine that a juvenile is incapable of rehabilitation. Graham.560 U.S. at
71-75.
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The Supreme Court in Graham ultimately held that the Eighth Amendment prohibits the
imposition of life imprisonment without parole for juveniles in nonhomicide crimes. Id. at 74.
The Supreme Court did not focus as much on the nominal classification of the sentence, whether
a life sentence or term-of-years, but foimd it unconstitutional to sentence a nonhomicide juvenile
offender to a "sentence [that] guarantees [the offender] will die in prison without any meaningful
opportunity to obtain release." Id. at 79. The Court clarified the scope of its prohibition:
A State is not required to guarantee eventual freedom to a juvenile offender
convicted of a nonhomicide crime. What the State must do, however, is give
defendants like Graham some meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation. It is for the State, in the first instance, to
explore the means and mechanisms for compliance. It bears emphasis, however,
that while the Eighth Amendment prohibits a State from imposing a life without
parole sentence on ajuvenile nonhomicide offender, it does not require the State to
release that offender during his natural life. Those who commit truly horrifying
crimes as juveniles may turn out to be irredeemable, and thus deserving of
incarceration for the duration of their lives. The Eighth Amendment does not
foreclose the possibility that persons convicted of nonhomicide crimes committed
before adulthood will remain behind bars for life. It does prohibit States from
making the judgment at the outset that those offenders never will be fit to reenter
society.
Id. at 75. Thus, if the State imposes a life sentence on a juvenile nonhomicide offender, it must
provide the juvenile "with some realistic opportunity to obtain release before the end ofthat term."
Id. at 82.
However,the "meaningful opportunity to obtain release" standard outlined in Graham does
not extend to juveniles such as Quevedo who have been convicted of murder. See Graham, 560
U.S. at 82; Garza v. Frakes. No. 8:17CV474, 2018 WL 1710183, at *3 (D. Neb. Apr. 9, 2018)
("[Petitioner] is unable to cite to any Supreme Court authority clearly holding that a discretionary
sentence like his—a term of years for murder with the possibility of parole within his lifetime—^is
equivalent to a life sentence without the possibility of parole and is cruel and unusual punishment
in violation ofthe Eighth Amendment."); Laird v. Rvan. No. CV-17-00482-PHX-JAT, 2018 WL
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4112150, at *1-2(D. Ariz. Aug. 29, 2018)(holding that Graham does not apply to petitioner's
129-year aggregate sentence for various crimes and a consecutive life sentence with the possibility
of release after twenty-five years in prison for a homicide offense). The Eighth Circuit has noted
that Graham's holding is limited by its terms. United States v. Spires. 628 F.3d 1049, 1055 n.3
(8th Cir. 2011)(refusing to "broaden the analysis" of Graham to determine the constitutionality of
using prior convictions to enhance the sentence of a convicted adult); United States v. Scott. 610
F.3d 1009, 1018 (8th Cir. 2010)(noting that Graham established a constitutional limit only "on
certain sentences"). Thus, Quevedo does not qualify for relief under Graham.
Even if the principles of Graham were to apply to Quevedo, Graham would not justify
granting § 2254 relief to Quevedo. Many courts, both state and federal, have wrestled with the
application of Graham's holding to a term-of-years sentence when the term does not hold promise
for parole or release. See, e.g.. Bimch v. Smith. 685 F.3d 546, 552 (6th Cir. 2012)("[CJourts
across the country are split over whether Graham bars a court from sentencing a juvenile
nonhomicide offender to consecutive, fixed terms resulting in an aggregate sentence that exceeds
the defendant's life expectancy."). However,Quevedo's sentence involves the possibility ofparole
within his life expectancy.
When a term-of-years sentence includes the possibility of parole, courts have found no
Graham violation if the defendant becomes eligible for parole within his expected lifetime. See,
e.g.. United States v. Mathurin. 868 F.3d 921, 935 (11th Cir. 2017)(holding that the defendant's
sentence comported with Graham when,taking into account the defendant's maximum good-time
credit available, he could be released within his expected lifetime at age 67); Hart v. Beard. No.
SACV152129RPLA,2016 WL 8456753, at *5(C.D. Cal.Nov. 16,2016)(holding that petitioner's
sentence did not violate any constitutional standards because he "still had significant life
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expectancy" after age 51 when he becomes eligible for parole), report and recommendation
adopted. No. SACV152129RPLA,2017 WL 901086(C.D. Cal. Mar.6,2017); Springer v. Doolev.
No. 3:15-CV-03008, 2015 WL 6550876, at *5-8 (D.S.D. Oct. 28,2015)(holding that a 261-year
sentence where the defendant would be eligible for parole at the age of 49 was not a de facto life
without the possibility ofparole sentence as prohibited by Graham"): Moulavi v. Long.No. SA CV
13-31-JLS (PLA), 2015 "WL 4273332, at *14 (C.D. Cal. Feb. 3, 2015)("Because petitioner's
sentence did not mandatorily impose life without parole and allows for the possibility of parole
well within his expected lifetime, it does not violate constitutional norms."), report and
recommendation adopted. 2015 WL 4304764(C.D. Cal. July 10, 2015); Silva v. McDonald. 891
F. Supp. 2d 1116, 1131 (C.D. Cal. 2012)("Notwithstanding the holdings in Roper. Graham, or
Miller, this Court is not aware of any controlling Supreme Court precedent which holds, or could
be construed to hold,that the sentence at issue here of40-years-to-life with the possibility ofparole
[at the earliest at age 55, but not later than age 60],for ajuvenile who was 16 years old at the time
ofthe nonhomicide crime, violates the Eighth Amendment.").
Consistent with that logic, courts have held that when parole eligibility under a term-of-
years sentence occurs close to or exceeds the defendant's life expectancy, the sentence violates
Graham. See, e.g.. Moore v. Biter. 725 F.3d 1184, 1191-92(9th Cir. 2013)(finding sentence of
254 years with no opportunity for parole eligibility within defendant's lifetime "materially
indistinguishable from a life sentence without parole"); California v. Caballero.282 P.3d 291,295
(Cal. 2012) (finding a 110-year sentence equates to a de facto life sentence and focusing on
whether the parole eligibility date falls outside the defendant's life expectancy); Flovd v. Florida.
87 So. 3d 45,46-47(Fla. Dist. Ct. App. 2012)(per curiam)(holding defendant received a de facto
life sentence where he would not be eligible for parole until age eighty-five which exceeded his
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life expectancy). Similarly, this Court previously reasoned that "term sentences virtually
guaranteeing an offender will die in prison without meaningful opportunity for release could be
considered a life sentence for the purpose of applying Graham or Miller." Roneshirt. v. United
States. No. 13-CIV-3008-RAL,2014 WL 6605613, at *8(D.S.D. Nov. 19, 2014).
Quevedo also invokes Miller v. Alabama to argue that his sentence violates the Eighth
Amendment. Miller consolidated the appeals of two juveniles, both of whom had received
mandatory life sentences without parole for murders committed at age fourteen. 567 U.S. at 465.
The Supreme Court reemphasized the "significant gaps" that exist between juveniles and adults
and required sentencing courts to consider youth mitigating factors—as well as the "characteristics
and circumstances attendant" to the crime committed—^when imposing a state's harshest sentence
on juveniles. Id. at 476-77. Because the sentences imposed in Miller were mandatory and wholly
precluded consideration of mitigating youth factors, the Supreme Court invalidated the sentences
under the Eighth Amendment. However, the Supreme Court noted in the very first paragraph of
Miller that there is a significant difference between mandated life imprisonment without the
possibility of parole and the lesser sentence of"life with the possibility of parole." Id. at 465.
Quevedo was sentenced in March 2018 when he was 18. Based on the sentence imposed,
Quevedo would be eligible for parole in March 2061, 43 years later. S.D. Dep't Corr., supra.
Although it is impossible to determine precisely how long any one person has to live, the question
oflife expectancy for those in prison presents itself periodically, including previously before with
this Court. See Springer. 2015 WL 6550876, at *7; Boneshirt. 2014 WL 6605613, at *10; Jensen
V. Young.No.4:18-CV-04041,2019 WL 653062,at *6(D.S.D.Feb. 15,2019). Using government
resources and actuarial tables, an 18-year-old's life expectancy (Quevedo's age at time of
sentencing)appears to range from the age of71.9 to 85 years. 26 C.F.R.§ 1.72-9 at tbl.l(providing
10
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18-year-old male would live 53.9 more years, or to the age of 71.9); 26 C.F.R. § 1.401(a)(9)-9
(providing 18-year-old male would live 67 additional years, or to the age of 85); SSA, Actuarial
Life Table, http://www.ssa.gov/oact/STATS/table4c6.html (last visited Feb. 1, 2019)(providing
18-year-old male would live 58.97 additional years, or to the age of 76.97). Thus, Quevedo's
initial parole eligibility date at age 62 years is within his life expectancy.
However,because this date is 9.9 years from his minimum life expectancy, Quevedo argues
this does not give him a "meaningful opportunity" for release under Graham. But Graham does
not require South Dakota "to guarantee eventual freedom to [Quevedo]." Graham. 560 U.S. at 75.
Applying Graham here, what South Dakota must do is afford Quevedo "some meaningful
opportunity to obtain release based on demonstrated maturity and rehabilitation." Id (emphasis
added). Here, Quevedo is eligible for parole within his lifetime, though the approximate lengths
of that life vary. This Court has previously found no violation of Graham or Miller for a person
convicted as an adult for a murder committed as a juvenile who would be released between ages
59 and 65 with a life expectancy of 72. Boneshirt. 2014 WL 6605613, at *10. Under South
Dakota's current parole-eligibility system, Quevedo will have a meaningful opportunity to show
that he has matured and has rehabilitated himself within his expected lifetime. See Springer. 2015
WL 6550876, at *8. When Quevedo is 62, he will be "entitled to a hearing with the Board of
Pardons and Paroles to present [an] application for parole." SDCL § 24-15-8. Quevedo will be
paroled ifhe can demonstrate that he has been confined for a length oftime sufficient to rehabilitate
himself, is no longer a danger to society, and has secured employment for the expected parole
period in an environment where he will be free from criminal influences. Ifr Unlike the petitioner
in Graham. Quevedo will have the opportunity to Remonstrate that the bad acts he committed as a
juvenile are not representative of his character. Graham. 560 U.S. at 79 (emphasizing that
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Graham's sentence "guarantee[d] he will die in prison ... even if he spends the next half century
■attempting to atone for his crimes and learn from his mistakes"). If parole is denied, Quevedo will
be able to reapply eight months later. SDCL § 24-15-10. Quevedo's parole eligibility presents a
realistic and meaningful opportumty, perhaps even multiple opportunities, to obtain early release
in his lifetime. Quevedo will have an opportunity to demonstrate that since his incarceration he
has matured and has been rehabilitated. Unlike in Graham, it was not determined "at the outset"
that Quevedo was incapable of rehabilitation. Graham. 560 U.S. at 74, 79.
Even if Quevedo's sentence were somehow the equivalent of a life sentenee. Miller
expressly left open the question of whether a life sentence without parole was categorically barred
for juveniles who commit murder. Miller. 567 U.S. 479 ("Because that holding [requiring
individual sentencing determinations] is suffieient to decide these cases, we do not consider [the
petitioners'] alternative argument that the Eighth Amendment requires a categorical bar on life
without parole for juveniles, or at least for those 14 and yoimger."). Miller did not preclude the
possibility that some juvenile homicide offenders rightfully may deserve a sentence of life in
prison without parole; it only required that a "judge or jury must have the opportunity
to consider mitigating circumstances before imposing the harshest possible penalty for juveniles."
Id, at 489.
Because Quevedo was convicted of murder, did not receive a sentenee of life without
parole, and has the opportunity for parole during his life expectancy, the sentence imposed on
Quevedo does not violate Graham or Miller. Therefore, Quevedo's first ground for relief is denied
and the State's motion to dismiss on this ground is granted.
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2. Ground II—^Disproportionate Sentence in Violation of the Eighth Amendment
Quevedo next argues that his sentence of ninety years is disproportionate to the crime
committed. This determination is made under the particular circumstances of Quevedo's case.
Running v. United States. 81 F. Supp. 3d 781, 792 (D.S.D. 2015). In the context of a case-
particular challenge to a term-of-years sentence, the Supreme Court has explained that the Eighth
Amendment "contains a 'narrow proportionality principle,' that 'does not require strict
proportionality between crime and sentence' but rather 'forbids only extreme sentences that are
grossly disproportionate to the crime.'" Graham. 560 U.S. at 59-60 (quoting Harmelin v.
Michigan. 501 U.S. 957, 997, 1000-01 (1991)(Kennedy, J., concurring in part and concurring in
the judgment)).
Determining whether a particular sentence for a term of years violates the Eighth
Amendment involves a two-step analysis. Id. at 60. First, courts must compare the gravity ofthe
crime to the severity ofthe penalty to determine whether an "inference of gross disproportionality"
exists. Id.(quoting Harmelin. 501 U.S. at 1005(Kennedy, J. concurring in part and concurring in
the judgment)). Only in the "rare case" that such an inference arises do courts proceed to the
second step—comparing the defendant's sentence to sentences received by other defendants
convicted ofthe same crime. Id.(quoting Harmelin. 501 U.S. at 1005 (Kennedy, J. concurring in
part and concurring in thejudgment)). "Ifthis comparative analysis 'validate[s] an initialjudgment
that [the] sentence is grossly disproportionate,' the sentence is cruel and imusual." Id (alterations
in original)(quoting Harmelin. 501 U.S. at 1005 (Kennedy, J. concurring in part and conciarring
in the judgment)).
To evaluate the gravity ofa crime, courts consider the defendant's culpability and the harm
or threat of harm to the victim or society. Henderson v. Norris. 258 F.3d 706,709(8th Cir. 2001);
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Running, 81 F. Supp. 3d at 792-93. To adequately determine whether there is a grossly
disproportionate sentence based on the gravity of the crime, the facts of the offense must be
detailed. According to the Supreme Court of South Dakota:
Carlos Quevedo spent the evening of January 17, 2017, ingesting cold
medicine, alcohol, and marijuana with his friends in Rapid City. Quevedo and his
friends also stole food and alcohol from two local convenience stores and went
through unlocked cars looking for items to steal. Quevedo's friend, Cody Grady,
found a knife in one ofthe cars, but Quevedo took it from him because he thought
Grady was too intoxicated to carry a weapon.
As the evening progressed into the early morning hours of January 18,
Quevedo and Grady decided to steal beer from another local convenience store.
The store's surveillance video shows Quevedo and Grady walking into the store
and the events that followed. Grady's first attempt to steal a case of beer was
thwarted by the store's clerk, Kasie Lord, who took the case of beer away from him
and placed it behind the counter. Grady then went back and grabbed another case
of beer. Lord positioned herself in front ofthe door and called 911. As she began
to struggle with Grady to recover the second case ofbeer, Quevedo started stabbing
Lord in the back with the stolen knife. Lord can be heard on the 911 call asking
Quevedo,"What are you doing? Are you stabbing me?" Lord then tells him to
"Stop it! You've got the beer!" and begins screaming as Quevedo stabs her.
Quevedo can be heard saying,"Shut the fuck up, bitch."
Freed from Lord's efforts to intervene, Grady ran from the store with the
opened case of beer, dropping cans as he ran. However, Quevedo did not leave.
He followed Lord into the parking lot and continued his attack, stabbing her
repeatedly before fleeing on foot. Quevedo went to Grady's home,located within
one block of the convenience store, where he changed out of the distinctive
sweatshirt he wore during the killing and hid it above some drop ceiling tiles.
Law enforcement officers arrived at the convenience store shortly after the
stabbing and found Lord lying in the parking lot surrounded by a pool of blood.
They noted numerous stab wounds to her chest, abdomen, and back with little to no
active bleeding. An ambulance arrived and transported her to the hospital where
she later died. Lord's autopsy revealed 38 stab wounds in addition to defensive
wounds on her hands.
The officers reviewed the store's surveillance video and followed a trail of
loose beer cans and bloody shoe imprints to Grady's home where they apprehended
both Quevedo and Grady. Quevedo told the officers that he had blacked out and
had no memory of stabbing Lord.
Quevedo. 947 N.W.2d at 403-04.
Quevedo wasjust over seventeen years old when he committed this crime. Id at 403; Doc
1 at 13; Doc. 11 at 1; Doc. 12 at 1. Both the sentencing court and the Supreme Court of South
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Dakota reviewed the Miller factors. The sentencing court mentioned the brutality of the crime,
Quevedo's age, and the fact that had Quevedo been just eight months older would have had a
mandatory life sentence. Quevedo. 947 N.W.2d at 405. However, the court also considered
mitigating factors including Quevedo's childhood, substance abuse, acceptance of responsibility,
maturity as compared to others in his Mend group, and his history of caring for his younger
siblings. Id. at 405-08. The Supreme Court of South Dakota also mentioned these factors, citing
to the sentencing court's analysis. Id. at 411.
The gravity ofthe crime does not demonstrate that the sentencing court imposed a grossly
disproportionate sentence. Though Quevedo was a juvenile at the time ofthe offense, he is still
culpable for the act. Expert testimony showed that Quevedo exhibited normal psychological
behavior for a seventeen-year-old. Quevedo was deemed mature for his age, due to his ability to
care for his younger siblings and as compared to others in his Mend group. Quevedo's relative
maturity may have resulted from his hard childhood. The sentencing judge noted that Quevedo
"appeared to be the only responsible person in his home." Quevedo.947 N.W.2d at 407. Quevedo
accepted responsibility for his crime and did not use "the circumstances of his upbringing as a
reason to equivocate about the level of his culpability." Id. Further, Quevedo's crime of second-
degree murder caused the ultimate harm to his victim, Kassie Lord, by killing her in a particularly
brutal fashion. Quevedo not only initially attacked Lord as she sought to prevent the theft, but also
pursued Lord as she Med to flee into the parking lot to continue stabbing her.
In short, the sentence is not grossly disproportionate. Instead, the Miller factors are found
in the sentencingjudge's analysis and do not compel a different sentence. Applying the deferential
standard required by § 2254, this Court caimot extend Graham. Miller, and other Eighth
Amendment jurisprudence to deem Quevedo's ninety-year sentence for second degree murder.
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which allows a possibility of parole, to be unconstitutional. Quevedo has not met the high bar
required of a § 2254. As such, Quevedo's second grounds are dismissed. As such, the State's
motion to dismiss is granted on this issue.
3. Ineffective Assistance of Counsel
a. Procedural Default
Defendants argues that Quevedo procedurally defaulted his ineffective assistance of
counsel claims because he failed to timely seek discretionary review by the Supreme Court of
South Dakota after Judge Pfeifle dismissed Quevedo's habeas petition. A state habeas petitioner
in South Dakota cannot appeal the dismissal of his petition unless the circuitjudge or a justice of
the Supreme Court of South Dakota "issues a certificate ofprobable cause that an appealable issue
exists." SDCL § 21-27-18.1. Under § 21-27-18.1, the petitioner has thirty days from the date of
finaljudgment to seek a certificate ofprobable cause from the circuitjudge. Id. Ifthe circuitjudge
refuses to issue a certificate of probable cause, the petitioner may "file a separate motion for
issuance of a certificate ofprobable cause with the Supreme Court within twenty days ofthe entry
ofthe circuitjudge's refusal." Id.
State rules like SDCL § 21-27-18.1 will not bar a habeas claim unless they are "firmly
established, regularly followed,and readily ascertainable." White v. Bowersox,206 F.3d 776,780
(8th Cir. 2000); see also Sloan v. Delo. 54 F.3d 1371, 1379-80 (8th Cir. 1995)(explaining that a
state law is "adequate" to bar federal habeas review if the rule is clear, does not"thwart the
assertion of federal rights," and is firmly established and regularly followed (citation omitted)).
SDCL § 21-27-18.1 firmly establishes a readily ascertainable procedural rule for appeal from
denial of state habeas petition. The Supreme Court of South Dakota regularly enforces § 21-27-
18.1; it has dismissed untimely motions for a certificate of probable cause, Hannon v. Weber.638
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N.W.2d 48, 50 (S.D. 2001) (per curiam) (explaining that the court "dismisses motions for
certificate of prohahle cause that are untimely filed" even when the motions "are filed only one
day late"), and refused to consider an issue because the petitioner, having been denied a certificate
of probable cause on the issue by the circuitjudge,failed to "file a separate motion with" the court
requesting a certificate. White v. Weber.768 N.W.2d 144,149(S.D. 2009)(holding that the court
did have jurisdiction to consider the issue). This Court previously has concluded that § 21-27-
18.rs requirement that state habeas petitioners file a timely motion for a certificate of probable
cause with the Supreme Court of South Dakota is an independent and adequate state law ground
that bars federal review. Thielsen v. Weber. No. Civ. 10-1029-RAL, 2012 WL 844704, at *3
(D.S.D. Mar. 12, 2012)(holding that state habeas petitioner's claims were procedurally defaulted
because he failed to request a certificate of probable cause from the Supreme Court of South
Dakotah Two Eagle v. Weber. No. CIV. 10-5035-JLV,2011 WL 5914021, at *9-10(D.S.D. Mar.
15,2011)fsamel.report and recommendation adopted.No. CIV. 10-5035-JLY,2011 WL 5914060
(D.S.D. Nov. 28, 2011); see also Wiegers v. Weber. 37 F. App'x 218, 219-20 (8th Cir. 2011)
(concluding that prisoner procedurally defaulted his claims by failing to timely appeal the circuit
judge's denial of his habeas petition to the Supreme Court of South Dakota).
A state procedural default bars federal habeas review unless the petitioner can demonstrate
"cause" for the default and actual prejudice as a result of the violation offederal law.^ Mavnard
V. Lockhart. 981 F.2d 981,984(8th Cir. 1992)(citations omitted, emphasis added). If no "cause"
is found, the court need not consider whether actual prejudice occurred. Id. at 985; Wvldes v.
^ A petitioner's procedurally defaulted claim is barred from federal review unless there is a
showing of(1)cause and prejudice or(2)actual innocence. Grass v. Reitz. 643 F.3d 579,584(8th
Cir. 2011). Because Quevedo's allegations do not support an "actual innocence" claim,this Court
will only consider whether Quevedo has shown cause and prejudice.
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Hundley,69 F.3d 247,253(8th Cir. 1995). "The requirement ofcause ... is based on the principle
that petitioner must conduct a reasonable and diligent investigation aimed at including all relevant
claims and grounds for relief. . . ." Comman v. Armontrout. 959 F.2d 727, 729(8th Cir. 1992).
The habeas petitioner must show that"some objective factor external to {petitioner] impeded [his]
efforts." Id.
A petitioner may show cause by demonstrating that the factual or legal basis for a claim
was not reasonably available to the petitioner at the time or that there was interference by officials
which prevented the petitioner from exhausting his state remedies. Murray v. Carrier. 477 U.S.
478, 488 (1986). A petitioner's pro se status and ignorance of the law are not sufficient cause to
excuse a procedural lapse in failing to pursue state court remedies. See Stewart v. Nix. 31 F.3d
741, 743(8th Cir. 1994); Smittie v. Lockhart. 843 F.2d 295,298 (8th Cir. 1988).
Quevedo claims that he did not file a certificate of probable cause after the circuit court
entered its judgment against him in his state habeas action because he did not receive the final page
ofthe memorandum decision alerting him that the action was dismissed. However, Quevedo filed
a motion and amended motion for a certificate of probable cause with the Seventh Judicial Circuit
and a notice ofappeal ofthe denial ofthe motion for certificate ofprobable cause on July 26,2021.
Habeas Case,21-540 at 78-91. In his notice of appeal Quevedo states that he "does hereby appeal
to the Supreme Court of the State of South Dakota from the whole of the MEMORANDUM
DECISION dated and filed on July 12, 2021." Doc. 1-1 at 46. Quevedo claims he only received
this information from his mother and not the court itself, so notice ofthe decision was inadequate.
Doc. 1-1 at 65; Habeas Case, 21-540 at 81. Regardless of the notice provided by his mother, the
last paragraph of page 11 of the decision, which Quevedo admits to having received states: "In
sum. Petitioners has failed to show that [trial counsel] provided ineffective assistance of counsel.
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Consequently, Petitioner has failed to state a elaim upon which relief ean be granted and the
Petition is subject to dismissal." Habeas Case,21-540 at 123; Doe. 1-1 at 39. Quevedo had notiee
ofthe denial ofhis claim and took actions to vindicate his rights,though through an incorreet route.
First, by filing the eorrect motion with the ineorrect court and then filing the incorreet motion,
which, had either been in eompliance with SDCL § 21-27-18.1, would have been timely. The
proper course of action is clearly outlined in the plain language of SDCL § 21-27-18.1. Thus,
Quevedo, through the decision received and notice received from his mother, had enough
information to seek a timely certificate of probable cause, but he failed to take the correct action.
Quevedo also claims the failure to comply was due to him being pro sc. In this case, the
decision denying the certificate of probable cause was entered on July 12, 2021. To comply with
SDCL § 21-27-18.1, Quevedo would need to file a motion for a certificate of probable cause with
the South Dakota Supreme Court no later than August 2, 2021. Quevedo attempted to appeal
Judge Pfeifle's decision denying the certificate of probable cause on July 26, 2021; however,
because that was a notice ofappeal and not a motion made to the Supreme Court of South Dakota,
as required by statute, the court dismissed the appeal. Quevedo did not file a proper motion before
the Supreme Court of South Dakota until December 2021, well after the twenty-day limitations
period. While this procedural distinction may seem minor to a non-legally trained litigant, the
statute in this ease is plain on its face and clearly outlines the proper procedure. As such, the pro
se status of Quevedo does not excuse his procedural lapse. Therefore, Quevedo's ineffective
assistance of counsel claim is procedurally barred and the State's motion to dismiss must be
granted.
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b. Merits of Ineffective Assistance of Counsel Claim
Even if Quevedo had not procedurally defaulted his ineffective assistance ofcounsel claim,
that claim does not justify granting him the relief sought. The Sixth Amendment to the United
States Constitution guarantees the right to effective assistance ofcounsel in criminal prosecutions.
U.S. Const, amend. VI; see also Gideon v. Wainwright. 372 U.S. 335, 339 (1963); Johnson v.
Zerbst. 304 U.S. 458, 459 (1938); Powell v. Alabama. 287 U.S. 45, 63 (1932). To establish a
claim of ineffective assistance of counsel, the petitioner must show both that his counsel's
performance was deficient, and that the deficient performance prejudiced his defense. Strickland
V. Washington. 466 U.S. 668, 687 (1984). To meet this two-pronged Strickland standard, the
petitioner must show that "(1) his counsel's representation fell below an objective standard of
reasonableness; and(2)there is a reasonable probability that, but for his counsel's unprofessional
errors, the result of the proceeding would have been different." United States v. Ledezma-
Rodriguez. 423 F.3d 830, 836(8th Cir. 2005).
The first part ofthe test"requires a showing that counsel made errors so serious that counsel
was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."
Williams v. United States. 452 F.3d 1009,1013 (8th Cir. 2006). The petitioner must"overcom[e]
the strong presumption that defense counsel's representation fell 'within the wide range of
reasonable professional assistance.'" Delgado v. United States. 162 F.3d 981,982(8th Cir. 1998)
(quoting Strickland. 466 U.S. at 689). Courts are not to "second-guess" trial strategy. Williams.
452 F.3d at 1013. "The Sixth Amendment right to counsel functions to ensure that defendants
receive a fair trial, not a perfect one." Willis v. United States. 87 F.3d 1004,1008(8th Cir. 1996).
"The second part ofthe Strickland test requires that the movant show that he was prejudiced
by counsel's error . . . ." Williams. 452 F.3d at 1013. This means proving that "there is a
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reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different." Id.(cleaned up and citation omitted). "A reasonable probability is a
probability sufficient to undermine confidence in the outcome." li (cleaned up and citation
omitted). "It is not enough for the defendant to show that the errors had some conceivable effect
on the outcome of the proceeding." Ford v. United States. 917 F.3d 1015, 1021 (8th Cir. 2019)
(cleaned up and eitation omitted). "Beeause the defendant must satisfy both prongs of the
Striekland test to sueceed on an ineffective-assistance claim, a court may decide sueh a claim by
addressing either prong." Id.
Quevedo claims that his trial counsel was ineffective based on his advice relating to the
plea agreement. Doc. 1 at 8. Quevedo claims that he was induced into taking the plea agreement
because his counsel told him that it was the only way Quevedo would not die in prison. Doc. 1 at
8. Trial counsel based this recommendation on the fact that if Quevedo was convicted on multiple
eharges, the judge could impose a term-of-years sentence on each count and have the sentences
run eonsecutively. Doc. 1 at 8. Quevedo claims that such sentencing would not have been
constitutional and that counsel's error in advice was so egregious that he essentially had no counsel
and was prejudiced by the result. Doc. 1 at 13.
However, it appears that Quevedo's trial counsel was not ineffective in his advice. The
Eighth Circuit just upheld the Minnesota Supreme Court's ruling that consecutive sentences for
juveniles does not violate Miller, as the focus of the Supreme Court's ruling in Miller was the
"proportionality when finding mandatory life-without-parole sentences for juveniles to be
uneonstitutional." ^All v. Rov. 950 F.3d 572, 574-75 (8th Cir. 2020). Though the inmate in
Ali committed multiple murders, the Eighth Circuit did not limit its holding to multiple-murder
cases, but reasoned that the consecutive sentences for ajuvenile on separate charges are acceptable
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if proportional to the crime. Id. at 575-76. Because consecutive sentences for a juvenile in some
circumstances is not unconstitutional, the advice given by counsel to Quevedo was not
unreasonable.
Given the brutality of Quevedo's crime, it is not out of the realm that a sentencing judge
would impose consecutive sentences. Moreover, Quevedo's trial counsel legitimately could fear
that if Quevedo did not plead guilty, he would not only be convicted, but also receive a sentence
where he would die in prison. After all. South Dakota law dictated a sentence oflife without parole
if Quevedo were convicted ofthe first-degree murder charge. SDCL § 22-6-1. Quevedo's crime
was caught on camera, leaving Quevedo little defense on the facts to the murder charge. These
facts, taken with the Eighth Circuit's recent ruling, indicates that trial counsel rather than being
ineffective provided what may have been sound advice relating to Quevedo's potential sentence if
he were to go to trial. Even if Quevedo's third ground for relief was not procedurally defaulted, it
does not provide justification for relief under § 2254.
III. Conclusion
Based on the foregoing reasons, it is
ORDERED that the Defendants' Motions to Dismiss, Doc. 11; Doc. 12, are granted. It is
further
ORDERED that Quevedo's Amended Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2254, Doc. 1, is denied. It is finally
ORDERED that no certificate of appealability issues because there is an absence of a
substantial showing of the denial of a constitutional right to justify issuance of such a certificate
under 28 U.S.C. § 2253. However,Quevedo may request a circuitjudge to issue a certificate under
Rule 22 ofthe Federal Rules of Appellate Procedure.
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DATED this l^th. day of November, 2022.
BY THE COURT:
ROBERTO A. LANGE
CHIEF JUDGE
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