CASE NO. 19-6477/19A-482 (CAPITAL CASE)
IN THE SUPREME COURT OF THE UNITED STATES
____________________________________________________________
CHARLES RUSSELL RHINES,
Petitioner,
v.
DARIN YOUNG, WARDEN, SOUTH DAKOTA STATE PENITENTIARY,
Respondent.
____________________________________________________________
On Petition for a Writ of Certiorari to
The United States Court of Appeals for the Eighth Circuit
________________________________________________________________
REPLY IN SUPPORT OF A PETITION FOR A WRIT OF CERTIORARI
________________________________________________________________

Jason J. Tupman
Acting Federal Public Defender
Office of the Federal Public Defender
District of South Dakota and
District of North Dakota
200 W. 10th Street, Suite 200
Sioux Falls, SD 57104
(605) 330-4489

Claudia Van Wyk*
Stuart Lev
Assistant Federal Defenders
Federal Community Defender Office
for the Eastern District of Pennsylvania
601 Walnut Street, Suite 545 West
Philadelphia, PA 19106
(215) 928-0520
*Counsel of Record
Member of the Bar of the Supreme Court

Counsel for Petitioner, Charles Russell Rhines
Dated: November 2, 2019

 TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................. i
TABLE OF AUTHORITIES .......................................................................................... ii
REPLY IN SUPPORT OF A PETITION FOR A WRIT OF CERTIORARI ................. 1
I. This Court should grant certiorari to review the Eighth CircuitÊs creation of
a threshold exhaustion requirement for death-sentenced state prisoners
proceeding under § 3599. .................................................................................... 1
II. Clemency remains available to Mr. Rhines, as confirmed by South Dakota
law. ....................................................................................................................... 3
III. Mr. Rhines has been pursuing access to his experts for clemency since
February 2018. .................................................................................................... 4
CONCLUSION............................................................................................................... 7

 TABLE OF AUTHORITIES
Cases

Ayestas v. Davis, 138 S. Ct. 1080 (2018) .................................................................. 1, 3
Bucklew v. Precythe, 139 S. Ct. 1112 (2019) ................................................................ 4
Doe v. Nelson, 680 N.W.2d 302 (S.D. 2004) .............................................................. 3, 4
Harbison v. Bell, 556 U.S. 180 (2009) ....................................................................... 2, 6
Herrera v. Collins, 506 U.S. 390 (1993) .................................................................... 2, 6
Hill v. McDonough, 547 U.S. 573 (2006) ....................................................................... 5
Statutes
18 U.S.C. § 3599 ................................................................................................. 1, 2, 3, 4
S.D. Codified Laws § 24-15-10....................................................................................... 3

ii

 REPLY IN SUPPORT OF A PETITION FOR A WRIT OF CERTIORARI
This case presents a straightforward question regarding the system Congress
created for death-sentenced state prisoners to access counsel and „to obtain
[investigative, expert, or other] services.‰ See 18 U.S.C. § 3599(f). Although
Congress created requirements for the federal courts and § 3599 applicants to
follow, it did not create a rigid requirement that such applicants exhaust potentially
available state remedies for expert or other services before filing § 3599 motions.
The Eighth Circuit created precisely this sort of requirement. The Brief in
Opposition (BIO) argues that the question presented does not warrant a grant of
certiorari and makes numerous arguments that sidestep both the question and its
important implications for § 3599 applicants. As set forth in Mr. RhinesÊs Petition
and below, a writ of certiorari is warranted.
I.

This Court should grant certiorari to review the Eighth CircuitÊs creation
of a threshold exhaustion requirement for death-sentenced state prisoners
proceeding under § 3599.
The BIOÊs two primary arguments regarding Ayestas v. Davis, 138 S. Ct.

1080 (2018), demonstrate this caseÊs worthiness for certiorari review.
First, the BIO argues that Ayestas v. Davis, 138 S. Ct. 1080 (2018), does not
apply by attempting to distinguish § 3599Ês application in connection with
executive-clemency proceedings from the statuteÊs application in connection with
habeas-corpus proceedings. See BIO at 4. Yet the text of § 3599 and this CourtÊs
precedents preclude any such distinction. Federal courts „may authorize‰ appointed
counsel „to obtain . . . services‰·such as „investigative‰ or „expert‰ services·after
deciding whether those „services are reasonably necessary for the representation of
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 the defendant, whether in connection with issues relating to guilt or the sentence.‰
§ 3599(f). Congress drew no line between habeas or clemency proceedings. The
power to authorize a defendantÊs attorney to obtain expert services for clemency
proceedings arises from the same source and operates in the same manner as the
power to authorize a defendantÊs attorney to obtain expert services for habeas
proceedings. Through § 3599, „Congress ensured that no prisoner would be put to
death without meaningful access to the Âfail-safeÊ of our justice system.‰ Harbison v.

Bell, 556 U.S. 180, 194 (2009) (quoting Herrera v. Collins, 506 U.S. 390, 415 (1993)).
Thus, the Eighth Circuit was bound by this CourtÊs interpretation of § 3599 and its
„reasonably necessary‰ requirement in Ayestas, and the Eighth CircuitÊs novel
exhaustion requirement lacks any meaningful limiting principle. See Petition at 12–
13.
The BIO also asserts that the Eighth Circuit „did not ÂaddÊ exhaustion to its
analysis of [a § 3599 request].‰ See BIO at 11. Yet, in the same breath, the BIO
concedes that the Circuit treated the issue of whether Mr. Rhines „had not yet
exhausted his state rememdies‰ as dispositive of the appeal below. See BIO at 11
(noting that the Eighth Circuit „simply did not reach the merits because it believed
Rhines had not yet exhausted his state remedies‰). Thus, there appears to be no
meaningful dispute about the rule the Eighth Circuit created and applied to this
case: A death-sentenced prisoner must exhaust state remedies before federal courts
in the Eighth Circuit will reach the merits of a motion under § 3599.
Because of this new requirement, no court in this case has applied the
framework § 3599 established or the Ayestas CourtÊs interpretation of it. The BIO
2

 does not respond to this critical point, nor does it address the extent to which this
new requirement is „more demanding‰ than what § 3599 itself requires. See
Petition at 11–13 (applying Ayestas, 138 S. Ct. at 1092–94).

Ayestas itself also demonstrates the compelling nature of § 3599 issues.
There, this Court granted certiorari to review a single CircuitÊs „arguably more
demanding‰ test for § 3599 applicants. See Ayestas, 138 S. Ct. at 1093. This case,
and its implications for state prisoners facing execution in the Eighth Circuit, call
for similar attention and this CourtÊs review.
II.

Clemency remains available to Mr. Rhines, as confirmed by South Dakota
law.
The State incorrectly asserts that, because the South Dakota Board of

Pardons and Paroles recommended denying Mr. RhinesÊs clemency petition, he
must wait one year before „refil[ing].‰ BIO at 1 (citing S.D. Codified Laws § 24-1510). That assertion rests on a mistaken premise: that a statute governing when an
inmate may present an application to the Board also limits the power of the
Governor to consider new information, an amended application, or file a new
application. See S.D. Codified Laws § 24-15-10 (governing inmateÊs applications to
the Board).
The Eighth Circuit itself recognized that „South Dakota law grants the
Governor broad constitutional and statutory clemency authority.‰ Rhines v. Young,
No. 18-2376, 2019 WL 5485274, at *1 (8th Cir. Oct. 25, 2019) (per curiam) (citing

Doe v. Nelson, 680 N.W.2d 302, 313 (S.D. 2004)). The concurrence added that „the
stateÊs statutory scheme permits the Governor to delegate to the Board of Pardons
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 and Paroles the authority to hear such applications.‰ Id. (Kelly, J., concurring)
(citing Doe, 680 N.W.2d at 313). „South Dakota has a Âtwo-pronged pardon system: a
pardon granted by the Governor with input from the Board . . . or a pardon granted
solely by the Governor with no outside involvement . . . .ʉ Id. (Kelly, J., concurring)
(quoting Doe, 680 N.W.2d at 313). As a result, „whether Mr. Rhines is deserving of
clemency is now properly in the hands of the Governor.‰ Id. (Kelly, J. concurring).
Mr. Rhines can submit, and the Governor can consider, evidence from his experts.
Moreover, the BIO argues that, because state law does not provide for expert
evaluation for clemency purposes, expert evaluations are not „available‰ for
purposes of § 3599. See BIO at 8–9. This argument is beside the point, however, and
arises out of a misreading of § 3599Ês plain language. The statute refers to the
availability of clemency itself, not particular processes that relate to clemency. See
§§ 3599(e)–(f) (authorizing attorneys to obtain expert services „for executive or other
clemency as may be available to the defendant‰). Clemency is available to Mr.
Rhines under state law, thus, a federal court has jurisdiction to consider whether to
authorize his attorneys to obtain legal and expert services and, necessarily, what it
entails „to obtain‰ those services. In any event, the BIO does not cite any statute or
regulation that forbids the presentation of psychiatric or neuropsychological
evidence to the Governor. Thus, such evidence is „available‰ in clemency.
III.

Mr. Rhines has been pursuing access to his experts for clemency since
February 2018.

None of the delay concerns and last-minute tactics this Court addressed in

Bucklew v. Precythe, 139 S. Ct. 1112 (2019), are applicable here. Mr. Rhines sought
4

 the relief at issue here well within the time „to allow consideration of the merits
without requiring entry of a stay.‰ See Hill v. McDonough, 547 U.S. 573, 584 (2006).
In 2017, even while his initial habeas appeal was still pending in the Eighth
Circuit, Mr. Rhines began preparing for clemency proceedings. During those
preparations, his counsel recognized that Mr. Rhines had never been evaluated by a
neuropsychologist or a forensic psychiatrist with the benefit of a thorough social
history. Because prior counselÊs experts had been barred by the State Department of
Corrections from accessing Mr. Rhines, Mr. Rhines sought an order to allow his
experts access. On June 9, 2017, Mr. Rhines moved in the South Dakota state court
for an order to access his experts to prepare for clemency proceedings. That request
was denied on October 24, 2017. Mr. Rhines appealed to the South Dakota Supreme
Court, but that appeal was dismissed on January 2, 2018.
On February 7, 2018, Mr. Rhines moved in the district court, pursuant to
§ 3599 and the All Writs Act, for an order to access his experts, arguing that their
services were reasonably necessary to support clemency proceedings. The district
court denied the motion on May 25, 2018. Mr. Rhines timely appealed on June 21,
2018. Briefing was completed on November 15, 2018.
In January 2019 the Eighth Circuit notified the parties that oral argument
would be held in September 2019. On February 1, 2019, the State requested that
oral argument be scheduled in April 2019, which the Eighth Circuit denied. Oral
argument proceeded on September 26, 2019, and the Eighth Circuit issued its
opinion on October 25, 2019. Mr. Rhines filed his petition for writ of certiorari a
week later, on November 1, 2019.
5

 Mr. Rhines has been diligent and relentless in seeking access to his experts.
He anticipated over two years before his scheduled execution·and before his
habeas review was even complete·that these experts would assist in his clemency
proceedings and has been timely pursuing access through the federal courts since
February 7, 2018.
In fact, the State manufactured the emergency posture of the current
litigation. By February 2019, the State was aware that oral argument in the Eighth
Circuit would not be held until September 2019. Nonetheless, on June 25, 2019, the
State scheduled Mr. RhinesÊs execution for the week of November 3, 2019, just
weeks after the anticipated September oral argument. Thus, Mr. Rhines has not
been dilatory, but has been denied in-person access to expert services necessary to
present his case for relief in the „Âfail-safeÊ of our justice system.‰ See Harbison, 556
U.S. at 194 (quoting Herrera, 506 U.S. at 415).

6

 CONCLUSION

For these reasons and those in Mr. Rhines's petition, this Court should grant
a writ of certiorari to resolve the question presented.
Respectfully submitted,

Neil Fulton, Federal Public Defender
Jason J. Tupman
First Assistant Federal Public Defender
Office of the Federal Public Defender
Districts of South Dakota and
North Dakota
200 W. 10th Street, Suite 200
Sioux Falls, SD 57104

Claudia Van Wyk*

Stuart Lev
Assistant Federal Defenders
Federal Community Defender Office
for the Eastern District of Pennsylvania
601 Walnut Street, Suite 545 West
Philadelphia, PA 19106
(215) 928-0520

(605) 330-4489

*Counsel of Record
Member of the Bar of the Supreme Court

Counsel for Petitioner, Charles Russell Rhines

Dated: November 2, 2019

7