Submitted: January 11, 2018
Appeals from United States District Court for the District of
South Dakota - Rapid City
LOKEN, GRUENDER, and KELLY, Circuit Judges.
Russell Rhines brutally murdered Donnivan Schaeffer while
burgling a donut shop in Rapid City, South Dakota, on March
8, 1992. A state court jury convicted Rhines of murder and
burglary and sentenced him to death. The Supreme Court of
South Dakota affirmed the conviction and sentence, State
v. Rhines, 548 N.W.2d 415, 424 (S.D.), cert.
denied, 519 U.S. 1013 (1996), and subsequently affirmed
the denial of state post-conviction relief. Rhines v.
Weber, 608 N.W.2d 303, 305 (S.D. 2000). The district
court denied his federal petition for a writ of
habeas corpus but issued a certificate of appealability on
multiple claims. See 28 U.S.C. § 2253(c). On
appeal in Case No. 16-3360, Rhines argues six issues, one
relating to the guilt phase and five to the penalty phase of
the trial. We affirm.
A Guilt Phase Issue.
argues that the state courts violated his federal
constitutional privilege against self-incrimination by
admitting at trial prejudicial inculpatory statements he made
after warnings that he claims did not comply with Miranda
v. Arizona, 384 U.S. 436 (1966). Miranda held
that, before a person in custody can be interrogated, he must
that he has the right to remain silent, that anything he says
can be used against him in a court of law, that he has the
right to the presence of an attorney, and that if he cannot
afford an attorney one will be appointed for him prior to any
questioning if he so desires. Opportunity to exercise these
rights must be afforded to him throughout the interrogation.
Id. at 479. The Supreme Court of South Dakota
considered this issue at length on direct appeal and denied
relief, concluding that Rhines was given constitutionally
adequate warnings. Rhines, 548 N.W.2d at 424-29.
the Antiterrorism and Effective Death Penalty Act (AEDPA),
when a claim has been "adjudicated on the merits in
State court proceedings," a federal writ of habeas
corpus will not be granted:
unless the adjudication of the 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). Rhines argues, as he did to the
district court, that the South Dakota Supreme Court's
determination that the warnings were adequate was an
objectively unreasonable application of Miranda.
recite the relevant facts as detailed in the Supreme Court of
South Dakota's opinion. In February 1992, Rhines was
terminated as an employee at the Dig 'Em Donuts Shop in
Rapid City. On March 8, the body of employee Schaeffer was
found in the Dig 'Em Donut Shop storeroom with his hands
bound and stab wounds. Approximately $3, 300 was missing from
the store. On June 19, Rhines was arrested in Seattle for a
burglary in Washington State. After a local police officer
read a Miranda warning, Rhines asked, "Those
two detectives from South Dakota are here, aren't
they?" He was placed in a holding cell without
evening, Rapid City Police Detective Steve Allender and
Pennington County Deputy Sheriff Don Bahr arrived to question
Rhines about the Dig 'Em Donuts burglary and the murder
of Schaeffer. During a suppression hearing prior to trial,
Detective Allender recalled informing Rhines of his
Miranda rights as follows:
[Allender]: You have the continuing right to remain silent.
Do you understand that?
[Allender]: Anything you say can be used as evidence against
you. Do you understand that?
[Allender]: You have the right to consult with and have the
presence of an attorney, and if you cannot afford an
attorney, an attorney can be appointed for you free of
charge. Do you understand that?
[Allender]: Having these rights in mind, are you willing to
[Rhines]: Do I have a choice?
[Allender]: Yes [you do] have a choice, in fact [you do] not
have to talk with us at all.
[Allender again asked Rhines if he wanted to talk with the
[Rhines]: I suppose so, I'll answer any questions I like.
these warnings, Rhines gave the officers permission to tape
record his statement and made a chilling confession to
committing the Dig 'Em Donuts burglary and killing
Schaeffer. On June 21, after Allender and Bahr gave the same
warnings, Rhines again confessed to the burglary and killing.
trial, over Rhines's objections, the prosecution
introduced Detective Allender's testimony regarding
Rhines's statements during the untaped portion of the
June 19 interview, and recordings of the June 19 and June 21
interviews. From the recordings, the jury heard that Rhines
broke into Dig 'Em Donuts to burglarize it. During the
burglary, Schaeffer entered the store to retrieve money and
supplies for another store. Rhines stabbed Schaeffer in the
stomach. With Schaeffer "thrashing around and
screaming," Rhines stabbed him in the upper back, then
"help[ed] him up and walk[ed] him into the back room and
s[a]t him down on the pallet and walk[ed] him forward, he
goes rather willingly like he's decide it's time to
go." In the back room, Rhines stabbed Schaeffer in the
head, attempting to "stop bodily function." After
that, with Schaeffer still breathing, Rhines "tied his
hands behind him" and went back to the office to finish
collecting money. A medical examiner testified that
Schaeffer's wounds were consistent with Rhines's
direct appeal, Rhines argued the Miranda warnings
were constitutionally deficient in three ways: (i) he was
informed of his "continuing right to remain
silent," but not his right to cut off questioning
whenever he wished; (ii) he was informed of "the right
to consult with and have the presence of an attorney,"
but not his right to an attorney before and during
questioning; and (iii) he was informed that "an attorney
can be appointed for you free of charge," but not that
an attorney would or must be appointed. The Supreme Court of
South Dakota concluded the warnings were sufficient, applying
the standard in Duckworth v. Eagan, 492 U.S. 195,
203 (1989) ("[t]he inquiry is simply whether the
warnings reasonably convey to a suspect his rights as
required by Miranda"). The Court reasoned that
the interview transcript demonstrated that Rhines understood
his right to cut off questioning at any time; indeed, he
turned off the recorder when asked about a topic he did not
wish to discuss. 548 N.W.2d at 427. Rhines was told of his
right to an attorney at the beginning of each interview, a
warning that "plainly communicated the right to have an
attorney present at that time." Id. And the
totality of the warning given "reasonably conveyed the
right to appointed counsel." Id. at 428. The
Court noted that "[t]he words of Miranda do not
constitute a ritualistic formula which must be repeated
without variation in order to be effective."
Id. at 426, quoting Evans v. Swenson, 455
F.2d 291, 295 (8th Cir.), cert. denied, 408 U.S. 929
district court, reviewing the decision under AEDPA, concluded
that "the South Dakota Supreme Court did not
unreasonably apply clearly established federal law when it
determined that Rhines received effective Miranda
warnings prior to his June 19 and 21, 1992 interviews."
Relying on Duckworth, the district court concluded
that "the initial warnings given to Rhines touched all
the bases required by Miranda." In reviewing a
district court's denial of a § 2254 petition, we
review the district court's findings of fact for clear
error and its conclusions of law de novo. Middleton v.
Roper, 455 F.3d 838, 845 (8th Cir. 2006) (standard of
cites no clearly established federal law that the warnings
given to him were inadequate under Miranda. He
simply disagrees with the South Dakota Supreme Court's
application of Miranda and clearly established
federal cases interpreting Miranda. That Court
carefully considered each alleged deficiency in light of the
warnings given and the circumstances surrounding the
warnings, applying the proper Supreme Court standard and
considering relevant precedent from this court. Rhines makes
the conclusory assertion that the warnings did not reasonably
convey his rights. But he does not explain why the warnings
given were objectively unreasonable in these circumstances.
Reviewing de novo, the district court did not err in
concluding that Rhines is not entitled to relief on this
claim under AEDPA.
Penalty Phase Issues.
the five penalty phase issues raised on appeal concern claims
of ineffective assistance of trial counsel (IAC) at the
penalty phase. These federal claims have a long and
complicated procedural history.
trial court appointed three attorneys to represent Rhines at
trial -- Joseph Butler and Wayne Gilbert, both in private
practice, and Michael Stonefield, a local public defender.
After the jury found Rhines guilty of first-degree murder and
third-degree burglary, the case proceeded to the sentencing
phase. The prosecution incorporated evidence from the guilt
phase and rested. The defense presented testimony of
Rhines's two sisters. They described his academic,
behavioral, and social struggles as a child and teenager.
They testified that he dropped out of school in early high
school, was not helped by enlisting in the military at age
seventeen, and struggled with his sexuality as a gay man who
grew up in a conservative, Midwestern family. Consistent with
South Dakota law, the jury found that one or more statutory
aggravating circumstances existed and sentenced Rhines to
his conviction and sentence were affirmed on direct appeal,
Rhines applied to the state trial court for a writ for habeas
corpus. Represented by new, independent appointed counsel,
the Second Amended Application raised forty-six issues,
including ten claims of IAC by trial and appellate counsel.
The ninth claim was that trial counsel "failed to
investigate his background for mitigation evidence."
After an evidentiary hearing at which the three trial
attorneys testified and the subsequent submission of
deposition testimony by a defense attorney expert, the trial
court denied the application in a lengthy letter ruling
discussing many allegations of trial counsel IAC. With
respect to the penalty phase claim, Judge Tice wrote:
(24) Failure to investigate defendant's
background to provide effective mitigation.
As discussed earlier, there were substantial efforts made to
develop mitigation evidence. Trial counsel used reasonable
efforts to do so. There is no evidence to support a belief
that any further efforts would have been fruitful.
appealed this ruling to the Supreme Court of South Dakota.
Regarding the penalty phase IAC claim, Rhines argued that his
trial attorneys' billing records "showed that only a
cursory amount of work was devoted to mitigation witnesses.
The problem is we do not know if there is mitigation evidence
favorable . . . because the work was not done." The
Supreme Court of South Dakota ...