Nos. 3511 (Elbe 511mm?: mart at the "waiter! ?tate? OCTOBER TERM 2019 In re: CHARLES RUSSELL RHINES, Petitioner. 9 Petition For An Original Writ Of Habeas Corpus . BRIEF IN OPPOSITION TO PETITION FOR AN ORIGINAL WRIT OF HABEAS CORPUS JASON R. RAVNSBORG, South Dakota Attorney General PAUL S. SWEDLUND, Assistant Attorney General Counsel of Record OFFICE OF THE ATTORNEY GENERAL STATE OF SOUTH DAKOTA 1302 East Highway 14, Suite 1 Pierre, SD 57501-8501 Telephone: 605-773-3215 Facsimile: 605-773-4106 paul.swedlund@state.sd.us Attorneys for Respondent Young CAPITAL CASE EXECUTION SET-FOR NOVEMBER 4, 2019, AT 1:30 RM. 9 QUESTION PRESENTED Whether Rhines? allegations of homophobic jury bias present exceptional circumstances warranting the extraordinary remedy of an original writ of habeas corpus. TABLE OF CONTENTS SECTION STATEMENT OF THE CASE ARGUMENT . PAGE 1. Rhines? Request For A Stay Is Inequitable And Dilatory In The Extreme 2. Adequate Relief Could Have Been Obtained In The State And Federal Courts If Rhinos Had Timely Sought It 3. Hyperbole Aside, Rhines? Case Does Not Present Exceptional Circumstances Warranting Extraordinary Relief CONCLUSION APPENDIX Pertinent South Dakota Statutes. Commonwealth v. Spotz, 99 A.3d 866 (Pa. 2014) Ballard Attorney Referral Article Habeas Corpus Transcript Excerpt Criminal Trial Transcript Excerpt Rhines ?Reply To Last Word? Filing Rhines Pro Se Complaint United States District Court?s Rule 59(9) Ruling Thorpe v. Warden, CIV 10-433 2017) Cersosimo Journal Voir Dire Transcripts Juror Quote ii 28 32 Appendix 001 Appendix 009 Appendix 066 Appendix 068 Appendix 074 Appendix 083 Appendix 091 Appendix 112 Appendix 131 Appendix 155 Appendix 236 Appendix 478 I TABLE OF AUTHORITIES CASES CITED PAGE Amodeo v. United States, 743 Fed.Appx. 381 (11th Cir. 2018) 8, 14, 15 v. Horn, 664 F.3d 397 (3rd Cir. 2011) 5, 8 Butler 1). McKellar, 494 US. 407 (1990) 23 Candelario v. Warden, 592 Fed.Appx. 784 (11th Cir. 2014) 28 Commonwealth v. Spotz, 99 A.3d 866 (Pa. 2014) 9, 11, 30 Cullen v. Pinholster, 131 1388 (2011) 3, 6, 13, 33 Echols v. Ricci, 2011 WL 3678821 28 Ex parte Abernathy, 320 US. 219 (1943) 13 Felker v. Turpin, 518 U.S. 651, 662 (1996) I 13 Graham 0. Collins, 506 US. 461 (1993) 23 Gray Netherland, 518 US. 152 (1996) I 23 Gideon v. Wainwright, 372 US. 335 (1963) 23 Gonzalez v. Crosby, 545 US. 524 (2005). 5, 6 Habozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996) 26 Holmes 0. Cal. Army Nat?l Guard, 124 F.3d 1126 (9th Cir. 1997) 26 Howard D. United States, 533 F.3d 472 (6th Cir. 2008) 17 Hughbanks v. Dooley, 2016 SD. 76, 887 319 17 Irvin v. Dowd, 366 US. 717 (1961) 20 Johnson 0. Johnson, 385 F.3d 503 (5th Cir. 2004) 26 Kiley v. American Soc. For Prevention of Cruelty to Animals, 296 Fed.Apr. 107 (2nd Cir. 2008) 26 Lambrix v. Singletary, 520 US. 518 (1997) 23 Lofton v. Sec?y ofDep?t of Children Family Servs., 358 F.3d 804 (111sh Cir. 2004) 26 McDonald 0. Pless, 238 US. 264 (1915) 21, 22 McDonough Power Equip., Inc. v. Greenwood, 464 US. 548 (1984) 20 Montgomery v. Louisiana, 136 718 (2016) 22' Moreland L). Robinson, 813 F.3d 315 (61311 Cir. 2016) 18 Pena-Rodriguez v. Colorado, 137 855 (2017) 3, passim Prowel o. Wise Business Forms, Inc., 579 F.3d 285 (31?d Cir. 2009) 26 Rhines v. Weber, 2000 SD 19, 608 303 . 2 Rhines D. Young, 00-5020 2,7, 14, 21, 31 Robinson v. Wilson, 2001 WL 289884 28 Homer 0. Evans, 517 US. 620 (1996) 26 Saf?e 0. Parks, 494 US. 484 (1990) 23 Sawyer v. Smith, 497 US. 227 (1990) 22, 23, 27 Scarborough 1). Morgan County Bd. of Educ., 470 F.3d 250 (613h Cir. 2006) 26 Schriro v. Summerlin, 542 US. 348 (2004) I 23 Smith v. Phillips, 455 US. 209 (1982) 19 State v. Motzke, 2006 State v. Rhines, 1996 Teague 1). Lane, 489 US. 288 (1989) 22, 23, 27 Tharpe 0. Sellers, 138 545 (2018) 11, 20 Tharpe v. Warden, 10-433 2017) 20, 29 Thomasson 0. Perry, 80' F.3d 915 (4th Cir. 1996) I 27 United States 0. Reid, 13 1023 (1852) I 21, 22 United States v. Robinson, 2017 WL 4325019 (6'3h Cir. 2017) 25 Vickers v. Fairfield Medical Center, 453 F.3d 757 (6th Cir. 2006) 26 Whorton v. Bockting, 549 US. 406 (2007) 23 Young D. Davis, 860 F.3d 318 (5?311 Cir. 2017) 25 iv STATUTES CITED 28 U.S.C. 2244 28 U.S.C. 2254 15(a) SDCL SDCL 60(b) SDCL 606 SDCL 21-27433 SDCL 2127-51 SDCL 234-2741 SDCL 2314?29-1 OTHER CITED AUTHORITIES MEANS, Federal Habeas Manual: A Guide to Federal Habeas Corpus Litigation, ?7:39 (2017) 22, 23 STATEMENT OF THE CASE Charles Russell Rhines was convicted of the March 8, 1992, murder of 22-year-old Donnivan Schaeffer. State v. Rhines, 1995 SD 55, 1111 1?3, 548 415, 424 (Rhines I). That night, Donnivan entered the donut shop where he worked after hours to retrieve supplies and caught Rhines burglarizing and robbing the store. Rhines I, 1996 SD 55 at 11 158, 548 at 451. Rhines stabbed Donnivan in the abdomen and back. Donnivan dropped to the ?oor, screaming and writhing in pain. Rhines I, 1996 SD 55 at 11 158, 548 at 451. Donnivan begged Rhines not to kill him. Rhines I, 1996 SD 55 at 11 158, 548 at 451. I Rhines walked Donnivan to a dingy storeroom in the strip-mall donut shop and set him down on a wooden pallet. Rhines I, 1996 SD 55 at 11 158, 548 at 451. Rhines locked Donnivan?s head between his knees and pounded a hunting knife into the base. of Donnivan?s skull, partially severing his brain stem. I Rhines 1,1996 SD 55 at '1 158, 548 at 451. Unaffected by the screams and blood and death, Rhines left the store with his loot to get something to eat at ?Perkins. Up on LaCrosse [Street]. Had an order of french fries.? Donnivan?s body was found later that evening slumped forward on the pallet in a widening pool of his own blood, his hands tied behind his back. Rhines I, 1996 SD 55 at 11 158, 548 at 451. Donnivan Schaeffer lost his life so Rhines could make off with approximately $1,700 in cash and coins. Rhines I, 1996 424. The jury sentenced Rhines to. death. Rhines I, 1996 424. The South Dakota Supreme Court affirmed the conviction and sentence and the denial of Rhines? ?rst petition for habeas corpus. Rhines I, 1996 424; Rhines v. Weber, 2000 SD 19, 608 303 (Rhines II). Following federal post-conviction proceedings not relevant here, Rhines filed a second state petition for habeus corpus challenging his conviction, sentence and method of execution. The petition was denied. Rhines then obtained federal habeas corpus review of the claims denied in his first and second state habeas corpus petitions. The United States District Court for the District of South Dakota denied the petition in February of 2016. In March of 2016, Rhines ?led a Fed.R.Civ.P. 59(e) motion to amend the judgment alleging a new claim that jurors had sentenced him to death because of his homosexuality. RULE 59(e) MOTION, Docket 323, Rhines v. Young, CIV 00-5020 The district court denied the motion to amend because ?Rhines [ha]d not raise previously his juror bias claim in any state or federal proceeding.? ORDER DENYING MOTION TO AMEND, Docket 348, Respondent?s Appendix at 117. The district court ruled that Rhines? motion was, in substance, a successive petition and that ?Rhines [could] not use Rule 59(e) to circumvent [restrictions on successive petitions in 28 2244(b) and Pinholster. ORDER DENYING MOTION TO AMEND, Docket 348, Respondent?s Appendix at 120. Rhines filed a notice of appeal, but did not appeal the district court?s denial of his Rule 59(e) motion as it related to his claim of jury bias. Rhines was appointed new lawyers from the Federal Community Defender Of?ce? (PFCDO). In September of 2018, the PFCDO sought to revive the jury bias issues raised and lost in Rhines? Rule 59(e) motion by filing a Fed.R.Civ.P. motion to vacate the judgment denying his petition so that Rhines could amend his petition to add a new claim of jury bias. Rhines claimed to have ?newly discovered? evidence of jury bias based on PFCDO interviews of jurors conducted in December of 2016. These ?new? affidavits simply rehashed allegations of jury bias raised by Rhines? previous counsels? interviews of jurors in September 2015. Rhines? motion argued that the racial exception to the no-impeachment rule recently announced in Pena-Rodriguez 0. Colorado, 137 855 (2017), applied to sexual orientation bias. The district court denied. the motion because it had no jurisdiction to hear or rule on it. Citing the fact that the case was then on appeal to the circuit court, the district court ruled that its judgment was final. SECOND ORDER DENYING MOTION TO AMEND, Docket 399, Rhines Appendix at 320. Consequently, the court had no ?jurisdiction to allow Rhines to amend his habeas petition to add a new claim under Rule 15(a). Rather, based on Eighth Circuit case law, Rhines? motion to amend (Docket 383) is a successive petition. And because Rhines ha not received authorization from the Eighth Circuit to file a successive petition, [the district court could] not adjudicate the merits of his motion.? SECOND ORDER DENYING MOTION TO AMEND, Docket 399, Rhines Appendix at 320. Rhines requested a certificate from both the district and circuit courts for leave to appeal the denial of his motion to vacate/amend. Both courts denied the request. Rhines then petitioned this Court for a writ of certiorari to appeal the finding that his Rule 60(b) motion was a successive petition. This Court denied the writ on April 15, 2019. Rhines now seeks the extraordinary remedy of an original writ and transfer to the district court. The request for writ and stay of execution should be denied. ARGUMENT This court should deny Rhines? petition because (1) Rhines? request for a stay is inequitable and dilatory in the extreme, (2) this case does not present exceptional factual and legal issues and (8) adequate relief could have been obtained in the state and federal courts if Rhines had timely sought it. Rhines? petition fails to meet the criteria of an extraordinary petition, a successive petition or even a straight-up Pena-Rodriguez claim. Rhines? claim is supported by dubious evidence that has never been subject to judicial review. Due to these incurable procedural and substantive defects, remand to the ,district court would be futile. 1. Rhines? Request For A Stay Is Inequitable And Dilatory In The Extreme Recently, in Bucklew v. Precythe, 139 1112, 1134 (2019), this Court condemned the practice of re?exively entering stays of execution. Stays of execution ?should be the extreme exception, not the norm.? Bucklew, 139 at 1134. Per Bucklew, no stay should be. entered for lawsuits that attack settled precedent, which rest on _speculative theories, which lack sufficient substance to survive summary judgment and which could have been brought sooner. Bucklew, 139 at 1134. Bucklew reaffirmed the longstanding principle that the mere fact that an inmate has ?led a 42 U.S.C. 1983 claim even a potentially meritorious one ?does not warrant the entry of a stay as a matter of right.? Nelson v. Campbell, 541 US. 637, 649 (2004); McFarland 0. Scott, 512 U.S. 849, 858 (?ling for post- conviction relief ?by no means grants capital defendants a right to an automatic stay of execution?). a dilatory capital defendant inexcusably ignores [the] opportunity [to bring a claim earlier] and ?outs the available processes, a . . . court presumably would not abuse its discretion in denying a stay of execution.? I McFarland, 512 US. at 858. Per Bucklew, Nelson and McFarland, no stay is warranted in this matter: a. Rhines? appeal attacks settled precedent of this Court in Gonzalez v. Crosby, 545 US. 524, 529, 530 (2005), which ruled that a Rule 60(b) motion ?is in substance a successiVe habeas petition and should be treated accordingly? if it ?seeks to add a new ground for relief? that ?assert[s a] federal basis for relief from a state court?s judgment of conviction.? The district court found that Rhines? ?new [jury bias] claim meets the very definition of ?claim? that was established in Gonzalez.? SECOND ORDER DENYING MOTION TO AMEND, Docket 399, Rhines Appendix at 320. The district court found that ?Rhines [wa]s doing exactly that asserting a claim of error in his state conviction. Because Rhines? Rule 60(b)(6) motion is a successive petition and he did not seek or obtain the Eighth Circuit?s authorization to file it, [the district court did] not have jurisdiction to entertain it on the merits.? SECOND ORDER DENYING MOTION TO AMEND, Docket 399, Rhines Appendix at 320. . Rhines also attacks the settled precedent of Cullen v. Pinholster, 131 1388 (2011), which precludes federal habeas corpus courts from hearing evidence not contained in the state court record. Rhines? appeal rests on sheer speculation and inference. It would not satisfy Pena-Rodriguez?s requirement of ?clear and explicit statements indicating that racial animus was a significant motiVating factor? in the jury?s verdict. Pena-Rodriguez, 137 at 861. . Rhines? unexhausted claim of homophobic jury bias was twice not sufficient to withstand summary disposition in the district court, twice failed to qualify for a certificate of probable cause in either the district or circuit court, and twice failed to secure a petition for, a writ of certiorari from this court. e. Rhines was dilatory in presenting his alleged homophobic jury bias claim to the district court below and to this Court. Rhines was dilatory in the district court because he could have appealed the district court?s denial of his first Rule 59(e) motion when he appealed the district court?s denial of his petition for habeas corpus in 2016. Rhines L). Young, KES 334, 357). He did not. Instead, Rhines filed a. second motion while the appeal was pending and then took a separate appeal from the district court?s denial of his second motion in 2018. Rhines has been dilatory in presenting the issue to this Court, because this Court denied his petition for a writ of certiorari seeking to appeal the circuit court?s rejection of his homephobic jury bias claim on April 15, 2019, yet Rhines waited until three days before his execution to invoke the court?s original habeas corpus jurisdiction. Rhines? failure to timely appeal the 2016 denial of his first motion, and to invoke this Court?s original habeas corpus jurisdiction sooner, demonstrates how this petition is a calculated ?tool to interpose unjustified delay.? Bucklew, 139 at 1134. 2. Adequate Relief Could Have Been Obtained In The State And Federal Courts If Rhines Had Timely Sought It Rhines raised this identical jury bias/Peua-Rodriguez claim in two prior petitions for a writ 'of certiorari to this Court. Rhines v. South Dakota, No. 17- 8791; Rhines v. South Dakota, No. 18-8029. This court denied both petitions. This court can deny Rhines? current petition as well because Rhines failed to exhaust available state and federal remedies-- for his allegations of homophobic jury bias. Because Rhines failed to exhaust available state remedies, his jury bias claim does not meet criteria for the filing of a successive petition. Even if it did, and Rhines were given leave to file a successive petition, it would be subject to immediate dismissal because the claim is unexhausted, procedurally defaulted and barred by both state and federal statutes of limitations. And even if Rhines? jury bias claims were not barred six ways to Sunday, his proffered jury bias evidence does not satisfy the criteria of the Pena-Rodriguez exception. Thus, any ruling that Rhines? Rule 60(b) motion was not a successive petition, or extending Pena-Rodriguez to sexual orientation, would be futile. Amodeo v. United States, 743 Fed.Appx. 381, 385-86 (11th Cir. 2018)(ruling finding motion not a successive petition would have been futile because time for amending petition had passed). a. Rhines? Extra-Record Evidence Of Alleged Jury Bias Is Unreliable And Vigorously Disputed Rhines? jury bias affidavits are inherently unreliable because they were procured by PFCDO attorneys without any judicial oversight. The PFCDO are not real federal attorneys employed by the federal government and accountable to a local federal judicial authority like the South Dakota Federal Public I Defender Office. They pose as ?feds? but the PFCDO is, essentially, a private law ?rm that contracts with the Administrative Office of the United States Courts to serve as appointed counsel to indigent federal defendants through grant funding and private contributions. It functions as a private, boutique, anti-death penalty law firm but, consequentially, without the economic constraints that generally preclude private law firms from pursuing fabricated or frivolous claims because its clients death row inmates are not paying for the hours the PFCDO bills. As detailed in Commonwealth v. Spotz, 99 A.3d 866 (Pa. 2014), the PFCDO has exploited its private status outside of the type of judicial oversight that generally restrains real federal public defenders from making frivolous claims or economic constraints that inhibit regular private practice attorneys from churning a ?le ?to impede the death penalty to indulge its private political viewpoint,? by means that are ?simply unethical and improper.? Spotz, 99 A.3d at 904, 920, Respondent?s Appendix at 009. Here, the PFCDO procured the subject affidavits by ambushing jurors at their homes and ?harass[ing]? them about their verdict, specifically asking if theyhad ?changed? their minds or if they would vote ?differently? if they were informed that the PFCDO had information that a pejorative term about homosexuals had been uttered by a fellow juror during deliberations - as though the PFCDO had inside information about the deliberations unknown to the jurors who were there. GARLAND AFFIDAVIT at 1W 5, 42, Rhines Appendix at 310, 315. The PFCDO was ?rude as hell,? subjecting the jurors to ?a lot of bad language? While ?badgering? them to agree to PFCDO-fabricated falsehoods that a juror had referred to Rhines as a ?fucking queer? or ?faggot? during deliberations. GARLAND AFFIDAVIT at 111] 35, 37,47, Rhines Appendix at 314, 315. In reality, every juror contacted by the South Dakota Division of Criminal Investigation stated consistently and unequivocally that Rhines? homosexuality had absolutely no bearing on their decision to impose a death sentence. GARLAND AFFIDAVIT, Rhines Appendix at 310; GARLAND SUPPLEMENTAL AFFIDAVIT, Rhines Appendix at 317. Juror Cersosimo informed DCI that one juror made a joke that Rhines might like being locked in prison with other men. This ?stab at humor? ?did not go over well? with the jury and every juror agreed that Rhines? sexual orientation ?was not even a consideration? and had nothing to do with their verdict. The juror who made the joke immediately admitted that it was ?stupid? and ?dumb? to say such a thing and ?that was the end of it.? No other comments like that were made and Rhines? sexual orientation was not discussed again. GARLAND AFFIDAVIT at 11 24, Rhines Appendix at 313. The jurors. uniformly report not only that the deliberations were conducted in an ?extremely professional? manner but also that Rhines? homosexuality had ?[n]ot one iota? of in?uence on the decision to impose a death sentence. GARLAND AFFIDAVIT at 3, 26, 38, 42, 44, 46, Rhines Appendix at 310, 313, 314, 315. I The assaultive tactics and scurrilous insinuations are no surprise considering the scathing indictment of its ethics practices (or lack 10 thereof) in death penalty cases reported in the Spots opinion. Spots describes in detail the reputation for having an anti?death penalty ?agenda beyond mere zealous representation, one which routinely pushes, and in frequent instances . . . far exceeds ethical boundaries.? Spotz, 99 A.3d at 867, Respondent?s Appendix at 009. One can practically turn to any random page of the Spotz decision and find judicial condemnation of the ?contempt? for 3) the courts, ?lack of candor, scurrilous? tactics, ?contemptuous? conduct, ?dubious? and ?ethically questionable? behavior, ?pervasive conduct in causing 3! delay, obstructioniSt agenda,? penchant for ?accusing courts of incompetence or laziness, their argument unencumbered by concerns for I) accuracy, honest, and candor, abuses in briefing,? ?war on its ethical duty of 3) candor to the court, extreme conduct and/or misconduct,? and ?strategy to subvert the proper role of state courts? that is ?simply unethical and improper.? Spotz, 99 A.3d at 867, 871, 872, 875, 876 881, 883, 893, 896, 897, 898 n.21, 899, 900, 901, 902, 903, 911, 915, 920, pass?im, Respondent?s Appendix at 009. Indeed, this very court referred one PF CDO operative to state disciplinary authorities for his role in a PFCDO scheme to file an unauthorized petition for writ of certiorari in a death penalty case. REFERRAL ARTICLE, Respondent?s Appendix at 066; Spotz, 99 A.3d at 877, 913 n. 25, Respondent?s Appendix at i 009, 056. Because of its extreme tactics, the af?davits are inherently unreliable. Here, as in Tharpe v. Sellers, 138 545 (2018), there is a 11 significant discrepancy between what the jurors allegedly said to PFCDO lawyers and investigators and what they have said to others. As in Tharpe, there is evidence here that the jurors were confronted in their homes by PFCDO lawyers who were ?sneaky? about their purpose. SUPPLEMENTAL GARLAND AFFIDAVIT at 1] 12, Rhines Appendix at 317. In Tharpe, defense investigators interviewed a juror while he was drunk on a 12?pack of beer and several shots of whiskey; here the PFCDO procured an af?davit from Juror Keeney, whose wife describes him as having problems with memory and dementia. Not surprisingly, the PFCDO neglected to mention Keeney?s condition, which can only mean they knowingly exploited it in procuring his ?affidavit? and wished to conceal it. SUPPLEMENTAL GARLAND AFFIDAVIT at 9, Rhines Appendix at 317. In Thorpe, the juror never signed or swore to his ?af?davit;? here the PFCDO is similarly attempting to pass off unsworn and unsigned ?statements? of Juror Blake written and signed by a PFCDO investigator as a ?juror affidavit.? BLAKE Rhines Appendix at 98. In brie?ng to this Court in 18-8029, the PFCDO mendaciously asserted that the jurors have not ?retracted? the statements attributed to them by the PFCDO, a self?serving choice of verb that assumes the jurors made the alleged statements in the first place, or made them with the meaning the PFCDO draws from them. Blake has said that the assertions are ?Not true.? SUPPLEMENTAL GARLAND AFFIDAVIT at 11 6, Rhines Appendix at 317. There is nothing for Cersosimo to ?retract.? When asked if he voted for a death 12 sentence because Rhines is gay, Keeney adamantly said ?No, no, no. No I didn?t do that.? SUPPLEMENTAL GARLAND AFFIDAVIT at 15, Rhines Appendix at 317. Keeney?s statement certainly repudiates the homophobic inference that the PFCDO draws from the prepositional phrase (inserted by the PFCDO itself) ?with men? within Keeney?s otherwise generic statement that he believed that Rhines should not have been allowed to spend his life in prison. The PFCDO shamelessly exploited Keeney?s condition by phrasing his affidavit to give it import and meaning that was not intended or understood by Keeney. Accordingly, the veracity of any af?davits procured unilaterally by the PFCDO, an organization notorious for its disregard of ethical constraints and ?lack of candor,? is vigorously disputed. Spotz, 99 A.3d at 898 n. 21, 902. b. Rehearing By The District Court Would Be Futile Because Rhines Has Exhausted His State And Federal Appellate And Habeas Corpus Remedies Without Ever Raising A Jury Homophobia Claim Rehearing by the district court would be futile because Rhines exhausted his state appellate and habeas corpus processes without ever introducing any of his current ?evidence? of jury bias. His current evidence runs squarely up against Pinhotster?s ban on extra-record evidence in federal habeus corpus proceedings and the prohibition on federal review of precedurally defaulted, unexhausted claims. Pinholster, 131 at 1388; 28 2254(b)(1); Ex parte Abernathy, 320 US. 219 (1943)(extraordinary writ not granted ?where petitioner has not exhausted his remedies in the state courts?); Felker v. Turpin, 518 US. 651, 662 limitations ?inform? the 13 Court?s consideration of petitions for original writs of habeas corpus); S.C_t.Rule must demonstrate ?how and where the petitioner has exhausted available remedies in the state courts?). Rhinos cannot deve10p and is presently barred from bringing a successive habeas corpus petition under state law-because: - He is beyond the South Dakota 2?year and federal 1-year statutes of limitations. SDCL 21-27-33; 28 U.S.C. 2244(d)(1); and He cannot satisfy state criteria for a successive petition because the factual predicate of his jury bias claim is not ?new? and his claim does not arise from a new, retroactive constitutional rule. SDCL 21- 27-5.1. Any transfer to the district court on an original writ would be futile because the claim is unsupported by record evidence, incurably unexhausted, procedurally defaulted and time barred in state and federal court. Amodeo, 7 48 Fed.Appx. at 385-86 (ruling finding motion not a successive petition would have been futile because time for amending petition had passed). i. Rhines? Jury Bias Claim Is Time Barred Rhines? jury bias claim is time-barred by SDCL two-year and 28 U.S.C. one?year statutes of limitations. Rhinos filed two affidavits under seal in the United States District Court for the District of South Dakota which purport to evidence homophobic bias. UROR and UROR AFFIDAVITS, Docket 323 (Attachments 2 and 10), Rhinos 0. Young, 00- 5020 Those affidavits re?ect that jurors had been interviewed 14 about an alleged homophobic comment in September 2015 but Rhines did not move to amend his complaint before the end of September 2016 as required by 28 U.S.C. 2244(d)(1). Amodeo, 743 Fed.Appx. at 385-86 (motion to amend must . be made within one year). Rhines? knowledge of the factual predicate of his jury bias claim goes back even further than September 2015. Indeed, Rhines started asserting ?jury bias? practically before the ink was dry on the verdict form 25 years ago. Rhines? legal team, in consultation with Rhines himself, decided to utilize his sexual orientation in mitigation by portraying Rhines as a lost soul marginalized by society?s ostracization of homosexuals. HABEAS CORPUS TRANSCRIPT at 12/2-9, 92/19-22, 176/5-13, Respondent?s Appendix at 068; TRIAL TRANSCRIPT at 2614/5, 2616/25, 2617/8, Respondent?s Appendix at 074. Defense counsel laid the ground for this strategy by conducting pointed voir dire regarding each prOSpective juror?s attitude about homosexuality. Wayne Gilbert, one of Rhines? trial attorneys, testified in the state habeas corpus proceedings that be ?viewed the voir dire questioning as a way to weed out potential jurors who might be hostile to Rhines because of his sexuality.? HABEAS CORPUS TRANSCRIPT at 115, 156-157, Respondent?s Appendix at 068. All jurors, including those now the target of Rhines? allegations of homophobia, agreed that his sexual orientation had no bearing on the case. VOIR DIRE TRANSCRIPTS, Respondent?s Appendix at 236. 15 Nevertheless, Rhines argued on direct appeal that the trial court erred by refusing to appoint a forensic communications expert because he believed ?voir dire alone [had been] an inadequate method for detecting and eliminating jurors with biases against homosexuality.? Rhines also argued that a jury note to the judge inquiring into conditions of confinement for those serving life in prison ?re?ected homophobic sentiments that improperly affected jury deliberations.? Rhines I, 1996 SD 55 at 1] 105, 548 at 442. The South Dakota Supreme Court rejected Rhines? contentions that ?the jury considered irrelevant or unfairly prejudicial matters when imposing the death. penalty? or that the jury?s questions ?related to . . . Rhines? sexual orientation.? Rhines I, 1996 SD at jI'170 n.6, 548 at 443. Rhines did not further develop a claim of jury bias for his first (or second) state habeas corpus petition(s). Rhines II, 2000 SD 19, 608 NW. 2d 303. Rhines? knowledge of the predicate facts of his jury bias claim is deeper still. In a pro se complaint filed in state court on September 5, 2017, challenging the constitutionality of SDCL 21-27-36, Rhines stated that: During the plaintiffs [Rhines?] 24-year appeals process he has repeatedly attempted to urge his appointed counsels to interview the plaintiffs criminal trial jurors about a nine question note they sent to the trial court judge during penalty phase deliberations. These questions ranged from the plaintiffs future dangerousness if he were ever placed in a minimum security prison or be allowed work release to what conditions of confinement the plaintiff could expect to incur if the [plaintiff] had been sentenced to life in prison rather than death, to whether or not the plaintiff would be allowed to have a cell-mate or associate with other inmates. During voir dire the jurors were informed that the plaintiff is a homosexual and each potential juror 16 indicated this would play no part in their deliberations. However, the list of questions sent to the trial court judge during penalty phase deliberations seems to counterindicate those statements by these jurors and, subsequently the plaintiff urged each of his appointed counsels to interview these jurors about what they had meant with the 9 questions. During the nearly 23 ensuing years after trial and through 16 or so appointed counsels, none would interview the jury, until 2015 when counsel from outside the area was appointed by the Honorable Karen E. Schreier as Learned Counsel for the Plaintiffs federal habeas petition. In September 2015 Learned Counsel Carol R. Camp and investigator Mary K. Poirer began interviewing former jurors and discovered that apparently most of them had viewed the oaths they took in voir dire as merely a suggestion and the promise not to use the Plaintiffs homosexuality against him as being null and void. REPLY TO Respondent?s Appendix at 088-089 (emphasis I added). Because Rhines was aware of the factual predicate for his jury bias claim at the. time of the jury?s sentencing deliberations, he had until July 1, 2014, to file a successive state habeas corpus alleging jury bias. Hughbanks v. Dooley, 2016 SD 76, 11 16, 887 319, 324. He did not. Even if the factual predicate for a jury bias claim had not been known to Rhines until September" 2015 or December 2016, he did not timely file a successive state petition before the end of September 2017 or December 2018 or move to amend his pending federal petition before the expiration of the federal one-year statute at the end of September 2016. Howard v. United States, 533 F.3d 472, 475 (6th Cir. 2008)(claim raised in motionlto amend subject to federal one-year statute of limitations). A ruling finding that Rhines? jury bias claim is not a successive petition would be futile because it is incurably unexhausted, procedurally defaulted and time-barred. 17 ii. Rhines? Jury Bias Claim Does Not Satisfy The New Evidence And New, Retroactive Constitutional Rule Criteria For A Successive Petition Since Rhines? own words and the record as a whole establish that he was aware of thefactual predicate of his jury bias claim as long as 25 years ago but no later than September 2015, he cannot satisfy the ?newly discovered evidence? criterion for a successive petition. Indeed, in denying the identical jury bias claim Rhines raised in his Rule 59(e) moti?n, the district court observed that ?Rhines ha had roughly twenty years to develop the evidence he now offers. In fact, Rhines faults each of his attorneys for not developing this evidence sooner. But Rhines? allegations undermine the foundation of his motion. For Rhines to prevail, he must show that this evidence could not have been discovered earlier despite having exercised reasonable diligence to obtain it. Rhines, however, asserts that the evidence should have been discovered earlier if his attorneys were diligent. Rhines? contention is the inverse of what Rule 60(b)(2) is designed to address. He makes no showing that he had been unable to uncover the newly discovered evidence prior to the court?s summary judgment ruling. Likewise, the decades- long period of delay while the evidence was obtainable indicates a lack of diligence. Because this evidence was available to Rhines, it should have been presented prior to the entry of judgment.? ORDER DENYING MOTION TO AMEND, Docket 348, Respondent?s Appendix at 120; Moreland, 813 F.3d at 326 (?accusing counsel of ineffectiveness in not presenting . . . claims in trial?level 18 state post?conviction proceedings . . . is necessarily acknowledging that, with due diligence, the evidence in support could have been presented then?). To the extent Rhines argues that Rule 606 was an insurmountable obstacle alto developing jury bias evidence, he exaggerates . . . and Pena-Rodriguez itself is the proof. Rule 606 prohibits only the introduction of juror testimony or affidavits for the purpose of ?an inquiry into the validity of a verdict.? Rule 606 has never prohibited the introduction of juror testimony or af?davits for the purpose of challenging the constitutionality of the rule itself. The fact that Pena-Rodriguez succeeded in doing so in regard to racial bias proves that this avenue of exploring homophobic bias required no ?change in the law.? Unlike Pena-Rodriguez, Rhines did not timely challenge the constitutionality of Rule 606 as a means of investigating and exposing alleged jury bias against him. Per Smith 1). Phillips, 455 US. 209, 215 (1982), ?the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias.? According to Smith: The safeguards of juror impartiality, such as voir dire and protective instructions from the trial judge, are not infallible; it is virtually impossible to shield jurors from every contact or in?uence that might theoretically affect their vote. Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen. Smith, 455 U.S. at 217, 230. State statutes offer Smith avenues for relief. 606 (SDCL 19-19-606) has never completely foreclosed attacking a jury?s verdict on the grounds of ?extreme . . . passion or prejudice,? including by means of juror af?davits. State v. Motzke, 2006 SD 13, 1] 14, 710 433, 19 439. Like Pena-Rodriguez, Rhines could have sought relief from his state criminal judgment by ?ling: a A motion for a new trial per SDCL 23A-29-1 within 10 days of the entry of judgment on the grounds of ?irregularity in the proceedings of the . . . jury,? ?[m]isconduct by the jury,? and ?newly-discovered evidence,? Smith and McDonough Power Equip, Inc. 1). Greenwood, 464 US. 548, 556 (1984); or A motion for relief from judgment per SDCL 23A-27-4.1 within one year of the judgment; Rhines did not file either motion,-though the jury note so central to Rhines? jury bias claim was known to him even before his sentence was delivered. If the note caused Rhines to genuinely doubt the jury?s sincerity-l or impartiality he could have conducted a post-trial investigation into the jury?s alleged partiality per Motzke and McDonough and filed a motion for a new trial or for relief from judgment, or mounted a facial attack on Rule 606 itself. Pena-Rodriguez, 1,37 at 862. And though Tharpe shows that habeas corpus courts have, notwithstanding Rule 606, taken juror testimony on racial bias in capital cases, unlike Tharpe, Rhines did not develop his. jury bias claim in either his first or second state habeas corpus proceedings. Murpe v. Warden, CIV 10-433 2017)(unpublished), Respondent?s Appendix at 133, 145, 146. 1 Prospective jurors are presumed to be impartial and the answers they give in voir dire truthful. Irvin, v. Dowd, 366 U.S. 717, 723 (1961). 20 Rhines is now well beyond his window for any form of relief, making any application of Pena-Rodriguez to sexual orientation bias in this case merely advisory. Rhines asserts that Pena-Rodriguez?s exception is a ?new? constitutional rule that allows him to bring a successive petition per SDCL 21-27-51 But Pena?Rodriguez itself takes pains to point out that its exception is not-exactly new, observing that ?the Reid and McDonald cases [had] noted the possibility of an exception to the, [no-impeachment] rule [for] the ?gravest and most important cases.?? United States 0. Reid, 13 1023 (1852); McDonald v. Pless, 238 U.S. 264 (1915). If, as Rhines contends, imposition of a death sentence (allegedly) on the ground of a defendant?s sexual orientation violates ?the plainest principles of justice,? McDonald postulated a general exception for such occasions over 100 years ago. McDonald, 238 U.S. at 268; Motzke, 2006 SD 13 at 14, 710 at 439 (SDCL 19-19-608 does not foreclose attack on jury verdict in instances of ?extreme . . . passion or prejudice?). Indeed, nothing proves that no ?new? rule was needed to mount an impeachment challenge quite like the fact that Rhines? counsel were out drumming up juror af?davits two years before this court even issued the Pena- Rodriguez decision. JUROR AFFIDAVIT at 14 and UROR AFFIDAVIT at 11 10, Docket 323 (Attachments 2 and 10), Rhines v. Young, CIV 00-5020 Since Pena-Rodriguez did not create a new exception for sexual orientation, and since the general exceptions of Reid, McDonald and Motzke 21 were ?previously available? to Rhines for the purpose of impeaching his sentence on the grounds of alleged homosexual bias, Rhines cannot meet the ?new constitutional rule? criterion for a successive petition of either SDCL or 28 U.S.C.A. 2244(b). Even assuming Pena-Rodriguez created a ?new? constitutional rule as applied to Rhines, this Court would have to assume or decide that it has retroactive effect for Rhines to meet the criteria for a successive petition. under SDCL 21-27-5.1 and 28 U.S.C.A. 2244(b). Otherwise, any ruling in this case would be merely advisory. The test for determining retroactivity is set forth in Teague v. Lane, 489 US. 288 (1989). As described in Montgomery 1). Louisiana, 136 718, 728 (2016y First, courts must give retroactive effect to new substantive rules of constitutional law. Substantive rules include ?rules forbidding criminal punishment of certain primary conduct,? as well as ?rules prohibiting a certain category of punishment for a class of defendants because of their status or offense? . . . Second, courts, must give retroactive effect to new ?watershed rules of criminal procedure? implicating the fundamental fairness and accuracy of the criminal proceedings. ?Such a rule must be one ?without which the likelihood of an accurate conviction is seriously diminished.? Teague, 489 US. at 313. A ?watershed? rule must not just improve the accuracy of a trial, it must function as an ?absolute prerequisite to fundamental fairness.? Teague, 489 US. at 313; Sawyer v. Smith, 497 US. 227, 243 (1990); MEANS, Federal Habeas Manual: A Guide to Federal Habeas Corpus Litigation, ?7 :39 (2017)(a watershed ?rule must itself constitute a 22 I previously unrecognized bedrock procedural element that is essential to the fairness of a proceeding?). To underscore the rarity of ?watershed? rules, this Court has invoked the sweeping rule of Gideon v. Wainwright, 372 US. 335 (1963), as the ?paradigmatic example? of the ?primacy and centrality? a new rule must have to concepts of procedural fairness and accuracy in order to qualify as ?watershed.? Gray 0. Netherland, 518 US. 152, 170 (1996); MEANS, Federal Habeas at 7:39. This court has repeatedly remarked that it is ?unlikely? for many rules with the ?primacy and centrality? of Gideon to emerge from a criminal justice system already so well ordered around concepts of due process and fairness as America?s. MEANS, Federal Habeas at ?7:39. The ?watershed? exception is, thus, so ?extremely narrow? that in the years since Teagae this court has repeatedly rejected claims of new rules meeting the exception even in capital cases.2 MEANS, Federal Habeas at ?7:39. Pena-Rodriguez does not meet the ?watershed rule? exception per the language and reasoning of the Pena-Rodriguez decision itself: a. In Pena-Rodriguez, a defendant was tried on a charge of sexual assault. During deliberations a juror stated that'he believed the defendant was 2 Beard 0. Banks, 542 US. 406 (2004)(declining to find Mills rule re: jury instructions in capital cases a ?watershed? rule); Schriro v. Sammerlin, 542 US. 348 (2004)(declining to find Ring/Apprendi rule ?watershed?); Lambrix v. Singletary, 520 US. 518 (1997); Gray v. Netherland, 518 US. 152, 170 (1996); Graham v. Collins, 506 US. 461 (1993); Sawyer v. Smith, 497 US. 227 (1990); Saf?e 0. Parks, 494 US. 484 (1990); Butler v. McKellar, 494 US. 407 (1990); see also Wharton v. Bo'chting, 549 US. 406 (2007)(declining to find Crawford rule a ?watershed? rule in child sexual assault case). 23 guilty ?because he?s Mexican.? Pena-Rodriguez, 137 at 862. The juror told other jurors that, from his experience as a police officer, the ?sense of entitlement? he had observed in Mexican men was behind their being physically controlling of and aggressive toward women and young girls. The juror also stated that he believed the defendant?s alibi witness was not credible because he was ?an illegal,? Le. Mexican. With the court?s supervision, Pena-Rodriguez obtained affidavits from other jurors describing these statements. Pena-Rodriguez, 137 at 861. The record revealed that in voir dire Pena-Rodriguez?s counsel had asked only ?generic questions about juror impartiality? without asking any specific questions regarding any juror?s attitude about race generally or Mexicans in particular. Pena-Rodriguez, 137 at 861, 869. . This Court ?granted certiorari to decide whether there is a constitutional exception to [Rule 606] for instances of racial bias.? Pena-Rodriguez, 137 at 863. Pena-Rodriguez began by examining the history of many ?stark and unapologetic? examples of ?race-motivated outcomes? in jury cases in the United States. Pena-Rodriguez, 137 at 867. Despite the country?s aspirations to ?purge racial prejudice from the administration of justice? dating at least from amendments to the constitution in the wake of the Civil War the court found that ?race-motivated outcomes? of trials were a ?recurring evil? that ?implicate unique historical, constitutional and institutional concerns.? 24 c. From the ?distinct? role race has historically played in thwarting aspirations of equality in America,3 Pena-Rodriguez fashioned a narrow exception to Rule 606 for admission of ?clear and explicit statements indicating that racial animus was a significant motivating factor? in the jury?s verdict. Pena-Rodriguez, 137 at 861.- i The express limitation of the Pena-Rodriguez exception to the ?distinct? issue of race in and of itself proves that it is no ?watershed? rule of any application here: - Sexual orientation does not implicate the same ?unique historical, constitutional and institutional concerns? as race. American history is not replete with ?stark and unapologetic? anti-homosexual jury verdicts. No civil war has been fought over it. No nationwide pogrom has been perpetrated for the enslavement, eradication or extreme persecution of homosexuals. Homosexuals have not served as scapegoats for pressing socio-economic problems with consequences felt by the population at large such as loss of jobs or rising incidents of street crime. No politician has ever proposed constructing a wall to keep homosexuals out of the country. 3 See Young 0. Davis, 860 F.3d 318, 333 (5th Cir. [Supreme] Court?s emphasis on our long struggle against racial prejudice, and the ?constitutional and institutional concerns? attending that history, evince its constrained relaxing of the traditionally inviolate [no-impeachment] rule?); United States 0. Robinson, 2017 WL 4325019, *6?7 (61311 Cir. 2017)(refusing to extend Pena- Rodriguez to racial comments made by jury foreperson to two African-American jurors who initially had doubts regarding defendant?s guilt). 25 The acceptance of equality in regard to non-racial distinctions has occurred largely peaceably and with comparatively greatly less con?ict. b. Pena-Rodriguez?s premise that race has played a ?unique? role in social upheaval and violence in the nation?s history is corroborated by the fact that sexual orientation is not afforded the heightened protections extended to race in the nation?s civil rights laws. For example, employment discrimination based on sexual orientation is not actionable under Title VII of the Civil Rights Act. Evans 0. Georgia Regional Hospital, 850 F.3d 1248, 1255 (11th Cir. 2017).4 And-unlike race, classifications based on sexual orientation are not subject to strict scrutiny. Romer v. Evans, 517 620, 631?33 (1996)(applying rational basis not strict scrutiny to law alleged to discriminate on basis of sexual orientation).5 4 See also Prowel 0. Wise Business Forms, Inc., 579 F.3d 285, 293 (31fd Cir. 2009)(claim for sexual orientation discrimination is not cognizable under Title Kiley v. American Soc. For Prevention of Cruelty to Animals, 296 Fed.Appx. 107 (2nd Cir. 2008)(discrimination based on sexual orientation is not prohibited by Title Vickers 0. Fairfield Medical Center, 453 F.3d 757, 762 (6th Cir. orientation is not a prohibited basis for discriminatory acts under Title 5 See also Scarborough 0. Morgan County Bd. of Educ., 470 F.3d 250, 261 Cir. 2006)(noting homosexuality is not suspect classification); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004)(noting that neither the Supreme Court nor the circuit has recognize sexual orientation as a suspect class); Lofton v. Sec?y of Dep?t of Children Family Serva, 358 F.3d 804, 818 n. 16 (11th Cir. 2004)(noting that all circuits that have addressed issue have held homosexuals are not a suspect class); Holmes v. Cal. Army Nat?l Guard, 124 F.3d 1126, 1132 (9th Cir. 1997)(homosexuals are not a suspect class); Habozny v. Podlesny, 92 F.3d 446, 458 (7th Cir. 1996)(noting that in the military context the Seventh Circuit has subjected homosexual discrimination to 26 c. The Pena~Rodriguez court was hardly oblivious to other potential forms of improper bias in jury deliberations. The decision was expressly cognizant that ?[a]ll forms of improper bias pose challenges to the trial process,? but it singled out race and race alone for the ?added precaution? nof a Rule 606 exception. Pena-Rodriguez, 137 at 869. A broader exception addressed to ?[a]ll forms of improper bias? would have necessitated a declaration that Rule 606 is wholly unconstitutional,? something Pena- Rodriguez did not do. Having expressly declined to fashion an exception for ?[a]ll forms of improper bias,? Pena-Rodriguez is not a ?watershed? ruling as applied to Rhines. By singling out race, the PenavRodriguez court implicitly recognized that a similar exception in regard to other ?forms of improper bias? is not an ?absolute prerequisite to fundamental fairness? in our system of justice or a rule ?without which the likelihood of an accurate conviction is seriously diminished.? Teague, 489 US. at 313; Sawyer, 497 US. at 243. r" Consistent with these observations, ?no reasonable jurist could argue that Pena- Rodriguez applies retroactively on collateral review.? Thorpe, 138 at 551. (Thomas dissenting). Finally, even if Pena-Rodriguez is a watershed rule as to race, an argument for extending it to sexual orientation does not satisfy the criterion of a rational basis scrutiny); Thomasson v. Perry, 80 F.3dl915, 928 (4th Cir. 1996)(holding homosexual military personnel are not a suspect class). 27 ?new constitutional rule? for a successive petition. A successive petition ?cannot be used as a vehicle to create constitutional rules of criminal procedure not dictated by existing precedent.? Robinson, 0. Wilson, 2001 WL 289884 Candelario v. Warden. 592 Fed.Appx. 784 (11th Cir. 2014); Echols v. Ricci, 2011 WL 8678821, *33-34 established? Supreme Court law for purposes of habeas cerpus review is the holding of a case rather than an extension of the case to analogous circumstances that may follow from the reasoning of an opinion). 3. Hyperbole Aside, Rhines? Case Does Not Present Exceptional Circumstances Warranting Extraordinary Relief Even if Rhines? motion to amend were not a successive petition and Pena- Rodriguez did apply to claims of alleged homosexual bias, Rhines? proffered evidence does not demonstrate exceptional circumstance warranting the I extraordinary relief of an original writ: a. Unlike in Pena-Rodriguez, voir dire in Rhines? case went beyond generic questions about impartiality to include specific questions regarding any potential juror?s homosexual bias. VOIR DIRE TRANSCRIPTS, Respondent?s Appendix at 236. The fact that all jurors specifically responded that they would not hold Rhines? homosexuality against him significantly decreases the potential that it was a significant motivating factor in their deliberations. VOIR DIRE TRANSCRIPTS, Respondent?s Appendix at 286. 28 b. Pena-Rodriguez requires ?clear and explicit statements indicating that racial animus was a significant motivating factor? in the jury?s verdict. Pena-Rodriguez, 137 at 861. Unlike in Pena~Rodriguez, the alleged juror comments here are not clear and explicit expressions of animus toward homosexuals. At best, they fall into the category of an ?offhand comment? that one might expect to hear in a case where Rhines? homosexuality was proffered by his defense as a mitigating circumstance.6 Pena-Rodriguez, 187 at 869 (not every ?offhand comment indicating racial bias? will justify exception to Rule 606). 0. Unlike in Pena-Rodriguez and Thorpe, the questioning of the jurors was not conducted ?with the court?s Supervision? or ?in the presence of the court.? Pena Rodriguez, 137 at 861; Thorpe v. Warden, CIV 10- 433 2017)(unpublished), Respondent?s Appendix at 133, 145, 146. This left the PFCDO free to ambush, harass and badger jurors, engage in suggestive interview techniques, put words in the jurors? mouths, lay a guilt trip on them for imposing a death sentence, insinuate a scheme by which jurors could change their minds by following the '3 Arguably, one finds proof that Rhines? counsel succeeded in empaneling a jury that was not phased by, or even convinced of, Rhines? homosexuality in the jury?s question to the judge asking whether Rhines would be ?allowed to marry or have conjugal visits? if sentenced to life. What jury conceived of gay marriage in 1992? The jurors? question inherently suggests that they did not believe Rhines? homosexual mitigation narrative if they were concerned that he might marry and have conjugal visits with a woman. And the fact that the jurors asked about Rhines? access to conjugal visits with Visitors from outside the prison walls also belies Rhines? assertion that they believed prison would afford him a harem of male sexual companions. 29 lead, engage in selective reporting and presentation and generally subvert the proper administration of justice in all the ways for which is famous. Spotz, 99 A.3d at 867, passim, Respondent?s Appendix at 009. The Cersosimo and Keeney affidavits were self- Ievidently not written out by the affiants themselves. SUPPLEMENTAL GARLAND AFFIDAVIT at 11 13, Rhines Appendix at 317. There are. obvious differences in the handwriting in the heading and body of the affidavits and the handwriting of the signatures at the bottom of the page particularly Keeney?s shaky signature and the straight, precise handwriting in the heading and body of the af?davit. Use of the lawyer acronym for life without parole (LWOP) in the body of the Cersosimo affidavit proves that it was written by a PFCDO interviewer. Not phrasing the affidavits in the jurors? own words allowed the PFCDO to lace the affidavits with loaded words they could later spin with homophobic meaning not intended by the affiants, ag. insertion of the prepositional phrase ?with men? into Keeney?s affidavit'or failing to report that Cersosimo characterized the comment about Rhines being with men in prison as a ?stab at humor? that was roundly condemned by the other jurors and recanted by the juror who said it. It is noteworthy that when Cersosimo was interviewed by the predecessor counsel in 2015 and 2016, the resulting af?davit contained no statements of a homophobic nature whereas the later affidavit does, starkly 30 exposing how the PFCDO is putting words in juror?s mouths and spinning their meaning into a false narrative of homophobia. Compare UROR (Cersosimo) AFFIDAVIT, Docket 340 (Attachment 2), Rhines v. Young, CIV 00-5020 with CERSOSIMO AFFIDAVIT, Rhines Appendix at 97. The Blake ?af?davit? is not even signed by Blake. The absence of court supervision of the methods of questioning as occurred in Pena-Rodriguez and Thorpe, and the obvious selectivity and spin brought to what the PFCDO reports, renders the af?davits anything but clear and explicit expressions of animus against homosexuals. . This is especially true in the case of Juror Keeney, who suffers from memory impairments and dementia. SUPPLEMENTAL GARLAND AFFIDAVIT at 9, Rhines Appendix at 317. Both Keeney and Blake deny the words the PFCDO has put into their mouths, and the bias the PFCDO ascribes to their thoughts. The PFCDO clearly did not actually talk to Bennett Blake or they would have singled out a different juror to accuse of homophobic bias than one who is a lifelong democrat, whose deceased brother was gay and who grew belligerent when he believed that the D01 investigator was suggesting he was anti-gay (when it was actually the PFCDO making the suggestion). VOIR DIRE TRANSCRIPTS, Respondent?s Appendix at 264; SUPPLEMENTAL GARLAND AFFIDAVIT at 11 6, Rhines Appendix at 317. Affidavits procured unilaterally by the PFCDO, an organization notorious for its disregard of 31 ethical constraints and ?lack of candor,? are anything but clear and explicit expressions of homosexual bias. e. Even if taken at face value, Rhines? affidavits are conspicuously devoid of any evidence that the alleged statements were ?a signi?cant motivating factor? in his sentence. Pena-Rodriguez, 137 at 869. Juror Cersosimo kept a daily journal of the deliberations and it does not re?ect that Iihines? sexual orientation played any role in the deliberations. CERSOSIMO JOURNAL, Respondent?s Appendix at 155. Whereas Pena- Rodriguez had demonstrated that at least one juror voted to ?nd him guilty ?because he?s Mexican,? no such causal evidence has been proffered in Rhines? af?davits. Rhines? affidavits do not re?ect that the jurors were asked if they or anyone else voted for a death sentence ?because? Rhines is a homosexual probably because Rhines knows full well the answer is no. Rather than ask the operative question, Rhines expects this court simply to infer motive from some alleged offhand comment(s) unreliably reported by the PFCDO. Pena?odriguez requires more than lawyerly insinuation for proof of significant motivation; it requires ?clear and explicit? evidence, which is lacking. CONCLUSION Rhines? petition does not satisfy the criteria for the extraordinary remedy of an original writ. He had available state and federal court remedies he failed to timely exhaust, and he greatly exaggerates the alleged evidence of homosexual bias. The PFCDO is petitioning for futile relief. Even if the case 32 were transferred to the district court, it could not provide relief without suspending Pinholster?s ban on extra-record evidence and AEDPA prohibitions on review of unexhausted, procedurally-defaulted state claims and successive petitions and principles of comity. Janet Keeney spoke for the entire jury in calling Rhines? claim of homophobic bias a ?bunch of nonsense.? SUPPLEMENTAL GARLAND AFFIDAVIT at 10, Rhines Appendix at 317. Juror Cersosimo?s journal describes the work of a conscientious jury appreciative of the gravity of their decision. CERSOSIMO JOURNAL at 000030, 000044, 000052, Respondent?s Appendix at 155. She describes a jury sophisticated enough to agree that the emotions of Donnivan Schaeffer?s or Rhines? family for death or life would not drive the sentencing determination. CERSOSIMO JOURNAL at 000067, Respondent?s Appendix at 155. She describes a jury whose sentencing determination was instead driven by a concern to deliver ?justice for Donnivan? and the need ?to remember all the rights and dreams he had that Rhines so selfishly took from-him.? CERSOSIMO JOURNAL at 000067, Respondent?s Appendix at 155. She describes a jury sophisticated enough to agree that none of them would speak to the press because ?a few words could not begin to describe the magnitude of [their] experience? as jurors. CERSOSIMO JOURNAL at 000069,. Respondent?s Appendix at 155. She describes a jury animated by the principle that ?No one 33 should die the way Donnivan did.? CERSOSIMO JOURNAL at 000054, Respondent?s Appendix at 155. She describes a jury moved by rehearing the tape of Rhines? bloodcurdling confession, with his ?jarring laughter? while comparing young Donnivan?ls death spasms to a beheaded chicken running around a barnyard, from an 8-4 split in favor of death to unanimous in the decision. CERSOSIMO JOURNAL at 000066-67, Respondent?s Appendix at 155; CERSOSIMO AFFIDAVIT, Rhines Appendix at 97; GARLAND AFFIDAVIT at jl 48, Rhines Appendix at 310 (Juror Rohde describing how Rhines laughed because stabbing Donnivan in the base of his 'skull did not kill him right away I like he thought it would). Despite these disturbing aggravators, the jurors ?tried to ?nd every reason not to give him death.? JUROR QUOTE, Respondent?s Appendix at 478. Juror Cersosimo describes a jury focused on all the right and humane concerns of a jury charged with such a consequential decision. Since Cersosimo was so clearly committed to not judging Rhines based On his homosexuality, one would expect her journal to faithfully document any overt homophobia or homophobic undercurrent in the jury?s deliberations. But no mention of juror homophobia of any kind is found in Cersosimo?s journal. Despite the slanders of the jury I fabricated by Rhines? overzealous lawyers, Cersosimo?s journal is contemporaneous proof, unadulterated by PFCDO scheming, that the jury judged him for what he did, not who he is. 34 Rhines has now eluded justice for longer than he allowed Donnivan Schaeffer to live his life; there is no justice in further delaying the imposition of Rhines? deserved death sentence. Rhines? petition for an original writ of habeas corpus should be summarily and unceremoniously DENIED. Dated this 2'?d day of November 2019. Respectfully submitted, JASON R. RAVNSBORG ATTORNEY GENERAL Paul S. Swedlund Assistant Attorney General 1302 East Highway 14, Suite 1 Pierre, South Dakota 57 501-8501 .Telephone1605-773-3215 Facsimile: 605-773?4106 paul.swedlund@state.sd.us CERTIFICATE OF SERVICE The undersigned hereby certi?es that on this 2nd day of November 2019 a COpy of the foregoing response to petition for original writ of habeas corpus was served on Claudia Van Wyk, 601 Walnut Street, Suite 545 West, Philadelphia, PA 19106 and Jason J. Tupman, Acting Federal Public Defender, 200 West 10th Street, Suite 200, Sioux Falls, SD 57104 via e-mail to Claudia vanka@fd.org and iason tupman@fd.org respectively and US. Mail ?rst class prepaid. _Paul_S._Swedlundl Paul S. Swe dlund 35