DWI Appeal - South Dakota Grants New Trial When Attorney Ineffective

In Engesser v. Dooley, --- F.Supp.2d ----, 2011 WL 4625986 (D.S.D.) the defendant was convicted of vehicular homicide. His appeal was denied. His first writ for habeas corpus was denied. His habeas relief in federal court was denied, and then the denial was affirmed on appeal. His second writ of habeas corpus was granted, but then reversed on appeal. His third state writ was denied. He then filed his second federal writ for habeas relief, and the district court in the instant case granted the petition.


The factual predicate of defendant's claim for a successive filing of a federal habeas petition (that he had newly discovered evidence that was not available during the previous filings), was made through the testimony of a new witness, who testified at the writ hearing that the defendant was not driving vehicle at time of crash. This witness, who testified he saw a woman driving vehicle just minutes before fatal crash, had not been contacted about the case until a few weeks prior to federal habeas evidentiary hearing, and his name was not listed as witness to crash or events preceding it.


The second predicate (i.e. a constitutional violation occurred during his case) was that. but for his attorney's ineffective assistance in failing to investigate and call two other eyewitnesses as witnesses to the fatal car accident at defendant's criminal trial for vehicular homicide and vehicular battery, no reasonable factfinder would have found defendant guilty; if the trial attorney had interviewed eyewitnesses and called them as witnesses, their testimony would have directly contradicted state trooper's assertion that defendant was driver of vehicle in accident, and only state court to have considered eyewitnesses' testimony and to weigh testimony against evidence presented at trial found their testimony would have changed the outcome of the trial.


Because of the above, the district court found that sufficient evidence established a violation and granted the petition.


Editor's note: this case represents a wonderful blueprint for how to prove up a successive petition for federal habeas relief. It is also a valuable lesson for attorneys as to their obligation to interview witnesses prior to trial and to call witnesses at trial when necessary.

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