Streu v. State, WD 66656.

• Decision Date: 02 January 2007
• Docket Number: No. WD 66656.,WD 66656.
• Citation: 209 S.W.3d 556
• Parties: Larry STREU, Appellant v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

209 S.W.3d 556

Larry STREU, Appellant v. STATE of Missouri, Respondent.

No. WD 66656.

Missouri Court of Appeals, Western District.

January 2, 2007.

Appeal from the Circuit Court of Henry County, Missouri, Stephen K. Griffin, Judge.

Larry Streu, Jefferson City, MO, Appellant pro se.

Jeremiah W. (Jay) Nixon, Atty. Gen., Stephanie Morrell, Assistant Attorney General, Jefferson City, MO, for Respondent.

Before SMART, P.J., and EDWIN H. SMITH and HARDWICK, JJ.

Order

PER CURIAM.

Larry Streu appeals from the order of the Circuit Court of Henry County denying, without an evidentiary hearing, his motion to reopen his Rule 29.15 post-conviction proceeding. The appellant was convicted, after a jury trial, in the Circuit Court of Henry County, of first-degree murder, in violation of Section 565.020.1 and was sentenced to life in prison without parole in the Missouri Department of Corrections. He appealed his conviction to this court, which was affirmed in State v. Streu, 59 S.W.3d 39 (Mo.App.2001). On his direct appeal, the appellant was represented by appointed counsel from the Public Defender Office in Columbia, Missouri.

After his conviction was affirmed by this court, on February 4, 2002, the appellant filed a timely pro se Rule 29.15 motion for post-conviction relief, alleging ineffective assistance of trial counsel. On January 2, 2003, appointed counsel, a public defender from Kansas City, Missouri, timely filed an amended motion. In the appellant's amended motion, his post-conviction counsel alleged ineffective assistance of trial counsel, alleging that his trial counsel was deficient for failing to object to portions of the State's closing argument, which he contended bolstered the veracity of the State's key witness. On October 8, 2003, the motion court, without an evidentiary hearing, denied the appellant's amended motion, and he appealed to this court. On appeal, appellate counsel did not raise a claim of abandonment by post-conviction counsel. In Streu v. State, 161 S.W.3d 382 (Mo.App.2005), this court affirmed the motion court's order, denying the appellant's Rule 29.15 motion.

On September 12, 2005, the appellant filed a motion to reopen his Rule 29.15 post-conviction proceeding, alleging that: (1) a conflict of interest existed between his appellate counsel and his post-conviction counsel because they were both public defenders; and (2) he was "abandoned" by his post-conviction counsel because she did not raise two additional claims of ineffective assistance of trial counsel: (a) that the appellant's trial counsel was ineffective for advising him not to testify at trial; and (b) that she was ineffective for failing to adequately investigate and prepare a defense at trial. The motion court, without an evidentiary hearing, overruled the appellant's motion, which he appeals.

The appellant raises two points on appeal. In Point I,...