State v. Bilben

[¶23.] I dissent. The procedure used by Bilben — a collateral attack on the validity of a predicate conviction used for enhancement purposes — is a judicial construct. Unlike direct appeal, it is not codified by our Legislature. See SDCL 23A-32-2 (codifying right to appeal from a final judgment of conviction). Unlike a petition for habeas corpus, it is neither a remedy “antecedent to statute” nor “an integral part of our common-law heritage.” Rasul v. Bush, 542 U.S. 466, 473-74, 124 S.Ct. 2686, 2692, 159 L.Ed.2d 548 (2004). See also SDCL 21-27-1 (codifying habeas relief). Unlike direct appeal…