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DONALD E. MOELLER,
Petitioner and Appellant,
v.
DOUGLAS L. WEBER, Warden,
South Dakota State Penitentiary,

Respondent and Appellee.

[2004 SD 110]
South Dakota Supreme Court
Appeal from the Circuit Court of
The Second Judicial Circuit
Lincoln County, South Dakota

Hon. Gene Paul Kean, Judge

MARK F. MARSHALL of
Davenport, Evans, Hurwitz & Smith
Sioux Falls , South Dakota
Attorneys for appellant.

LAWRENCE E. LONG
Attorney General
GRANT GORMLEY
Assistant Attorney General
CRAIG M. EICHSTADT
ROBERT MAYER
Deputy Attorneys General
GARY CAMPBELL
SHERRI SUNDEM WALD
Assistant Attorneys General
Pierre, South Dakota
Attorneys for appellee.

Argued on March 22, 2004
Opinion Filed 10/6/2004

#22510
KONENKAMP, Justice
[¶1.] Petitioner, Donald Moeller, was tried, convicted, and sentenced to death for the rape and murder of a nine-year-old girl. He applied for a writ of habeas corpus in the circuit court. We affirm the circuit court’s denial of relief.

Background
[¶2.] On May 8, 1990, nine-year-old Becky O’Connell was abducted after she visited a local store in Sioux Falls . Moeller had also been a customer there. After Becky left the store, a witness saw her presumably heading home. The witness also testified that he noticed Moeller moving toward Becky and Becky shying away from him. Becky never made it home. Shortly after the witness had seen Becky and Moeller, three men driving through a secluded tract south of Sioux Falls noticed a light blue pickup with South Dakota license plates leaving the area. They later described the driver of the vehicle as matching Moeller’s general description.
[¶3.] The next day, two men discovered Becky’s body south of Sioux Falls in the area the blue pickup
had been seen. An autopsy revealed that Becky had been sexually assaulted and stabbed to death. Three days later, as part of the murder investigation, a police detective spoke with Moeller about Becky’s disappearance. Moeller admitted owning a blue pickup truck. He denied any involvement with the disappearance and provided the detective with blood and hair samples. The following day, Moeller fled South Dakota. He left behind his ill mother and his truck. While in the State of Washington, he used at least two aliases.
[¶4.] On Moeller’s disappearance, the police obtained a search warrant for his home. Under his bed, they discovered a section of the Sioux Falls Argus Leader containing a composite sketch of Becky’s murderer and an article discussing the crime. Moeller’s clothes, which would have been subject to soil analysis, were found freshly washed in his otherwise messy, filthy room.
[¶5.] Moeller was eventually apprehended and returned to South Dakota. On July 31, 1991, he was indicted by a Lincoln County Grand Jury on one count of first degree rape, one count of felony murder, and one count of first degree murder. The State filed a death penalty notice alleging four aggravating circumstances.
[¶6.] Moeller’s first trial began in July 1992. On September 1, 1992, the jury returned a verdict of guilty of one count of rape in the first degree, and one count of premeditated murder in the first degree. After a presentence hearing, the jury imposed the death sentence.
[¶7.] The conviction was reversed on appeal and remanded for a new trial. State v. Moeller, 1996 SD 60, 548 NW2d 465 (Moeller I). The same attorneys who represented Moeller in the first trial represented him in the second trial. In the second trial, the State presented testimony that Moeller had visited the entrance to the secluded crime scene two days before Becky’s rape and murder. The State offered expert evidence that soil samples taken from Moeller’s vehicle and the crime scene were similar. Also DNA evidence was offered relating to semen taken from Becky’s body that demonstrated that the probability of a person in the Caucasian population having DNA characteristics common to Moeller’s would be 1 in 130 million if the APO -B DNA analysis was not included and a 1 in 14.8 billion probability if the APO -B DNA analysis was included.
[¶8.] The jury convicted Moeller of rape in the first degree and murder in the first degree. After a presentencing hearing, the jury found three aggravating circumstances and imposed the death sentence. On direct appeal, we affirmed. State v. Moeller, 2000 SD 122, 616 NW2d 424 (Moeller II).
[¶9.] On February 16, 2001, Moeller filed an application for habeas corpus. The matter was heard by Circuit Judge Gene Paul Kean of the Second Judicial Circuit. The habeas court appointed counsel to represent Moeller. Also, the court granted Moeller’s request to depose the State’s soil expert, obtain a new defense soil expert, and hire a new DNA expert. The habeas hearing was held on February 27, 2002. Following the hearing, Moeller requested and was granted leave to add additional claims. The habeas court issued its memorandum opinion denying relief and quashing the writ. After additional arguments and motions, the court also issued Findings of Fact and Conclusions of Law.
Analysis and Decision
[¶10.] Because a petition of habeas corpus collaterally attacks a final judgment, our review is limited.Hays v. Weber, 2002 SD 59, ¶11, 645 NW2d 591, 595. Habeas review is not a substitute for a directappeal. Lien v. Class, 1998 SD 7, ¶10, 574 NW2d 601, 606. As a general matter, habeas corpus is used to review only: (1) whether the court has jurisdiction of the crime and the person of the defendant; (2) whether the sentence was authorized by law; and (3) whether, in certain cases, a defendant was deprived ofbasic constitutional rights. New v. Weber, 1999 SD 125, ¶5, 600 NW2d 568, 571-72. Findings of fact are reviewed under the clearly erroneous standard. Id. Habeas corpus petitions are subject to the doctrines ofres judicata and collateral estoppel. Rhines v. Weber, 2000 SD 19, ¶59, 608 NW2d 303, 316.
I.
[¶11.] Moeller first contends that the habeas court erred when it concluded that the trial court’s decision to admit testimony concerning gahnite was not a trial error that had substantial and injurious effect on the jury’s verdict and thereby deprived him of his rights to due process of law as provided by the
[1]
state and federal constitutions.In essence, this claim is an attempt to revive an issue presented on direct appeal. In Moeller II, we examined whether the trial court abused its discretion in admitting a belated report by Dr. John P. Wehrenberg, the State’s soil expert, and in failing to conduct a Daubert admissibility hearing on whether “Wehrenberg’s testimony was scientifically valid and admissible.

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