Clay, v. Dormire

• Decision Date: 05 December 2000
• Citation: 37 S.W.3d 214
• Parties: (Mo.banc 2000) . Arthur Scott Clay, Relator, v. Dave Dormire, Superintendent, and the Office of the Platte County Prosecuting Attorney, Respondents. Case Number: SC82331 Supreme Court of Missouri Handdown Date:
• Court: Missouri Supreme Court

37 S.W.3d 214 (Mo.banc 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Arthur Scott Clay, Relator, v. Dave Dormire, Superintendent, and the Office of the Platte County Prosecuting Attorney, Respondents.

Case Number: SC82331

Supreme Court of Missouri

Handdown Date: 12/05/2000

Appeal From: Original Proceeding in Habeas Corpus and Mandamus

Counsel for Appellant: Susan L. Hogan

Counsel for Respondent: Michael J. Spillane

Opinion Summary:

Arthur Scott Clay was convicted of forcible rape and sentenced to twenty years in prison. A judge rather than jury sentenced him because the judge found him a prior offender based on a prior conviction. Although the sentence was within the statutory range, the judge apparently considered the conviction in sentencing. After Clay's appeal and post-conviction motion, it came to light that the conviction should have been expunged and not considered. Clay now petitions for a writ of habeas corpus ordering a new trial and for mandamus directing references to the prior conviction be expunged.

RELATOR REMANDED TO THE DEPARTMENT OF CORRECTIONS; PEREMPTORY WRIT OF MANDAMUS ORDERED TO ISSUE.

Court en banc holds:

1) Following the United States Supreme Court's lead, the manifest injustice or miscarriage of justice standard in habeas cases requires the petitioner to show a constitutional violation probably resulted in convicting an innocent person. In Missouri, "actual innocence" is appropriate as defendants already have a habeas-like post-conviction proceeding. Except in capital cases' penalty phase, manifest injustice under this standard applies only to guilt or innocence, not sentencing. That Clay was denied jury sentencing and that the judge considered his prior conviction are trial court errors unrelated to innocence. Omission in appeal or post-conviction bars habeas corpus relief.

2) A writ of mandamus applies when a person has a right to have an act performed. Under the expungement order and statute, Clay is entitled to have the record of his conviction expunged, regardless of the expungement's practical effect.

Dissenting Opinion Summary:

The dissenting author would hold that Clay's punishment was improperly fixed and would reverse and remand the case for a new trial. His lack of knowledge that his record had not been expunged until after the time-bar for post-conviction relief justifies habeas. The majority redefines "manifest injustice," an inapplicable standard. The judge exceeded his jurisdiction. While not a constitutionally guaranteed right, Missouri statute preserves the right to jury sentencing.

Opinion Author: Stephen N. Limbaugh, Jr., Judge

Opinion Vote: RELATOR REMANDED TO THE DEPARTMENT OF CORRECTIONS; PEREMPTORY WRIT OF MANDAMUS ORDERED TO ISSUE. Price, C.J., Covington, Holstein and Benton, JJ., concur; White, J., dissents in separate opinion filed; Wolff, J., concurs in opinion of White, J.

Opinion:

Relator, Arthur Scott Clay, was convicted of forcible rape in 1989 and sentenced to twenty years in prison. He was sentenced by the judge rather than by the jury because the judge found him to be a prior offender, based on the erroneous consideration of an expunged prior conviction. A copy of the expungement order came to light only after relator's direct appeal and post-conviction motion had been denied. He now petitions for a writ of habeas corpus ordering a new trial and for a writ of mandamus directing that all references to the prior conviction be expunged from his records. The petition was filed originally in the Court of Appeals, Western District, and after issuance of an opinion granting both habeas corpus and mandamus relief, this Court granted respondents' application for transfer and assumed jurisdiction. Mo. Const. art. V, sec. 10. Rule 83.04. Having now determined that habeas corpus relief is unwarranted, relator is ordered remanded to the custody of the Department of Corrections. However, the petition for writ of mandamus is granted, and a peremptory writ of mandamus is ordered to issue.

On July 12, 1974, in the Circuit Court of Platte County, Missouri, relator pled guilty to the offense of distributing hashish and was placed on probation. Years later, after successfully completing probation, relator filed a motion with the sentencing judge pursuant to sec. 195.290, RSMo 1978 (repealed 1989), to expunge the conviction. While it was in effect, sec. 195.290 required trial courts to expunge the convictions of drug offenders who had been placed on probation if the offender was under twenty-one years of age at the time of the offense, had not reoffended or repeatedly violated probation, and had applied for expungement. The statute also provided that "the effect of such order shall be to restore such person, in the contemplation of the law, to the status he occupied prior to such arrest and conviction." Id. On July 2, 1980, following an evidentiary hearing, the sentencing judge entered an order expunging the conviction, on a finding that the requirements of sec. 195.290 had been satisfied.

Thereafter, on May 9, 1989, relator was convicted by a Platte County jury of the offense of forcible rape. During the trial, the judge found that relator was a prior offender based on the prosecutor's introduction of a copy of relator's 1974 drug conviction, which, inexplicably, had never been expunged from the records of the circuit clerk's office. Because of relator's status as a prior offender, the judge, rather than the jury, imposed sentence as provided under sec. 557.036.2, RSMo 1986. Although the 20-year sentence was within the statutory range of punishment of five years to life, the trial court apparently considered the prior expunged conviction, as well as relator's successful completion of probation for that offense, in imposing the sentence.

The existence of the expungement order was not raised by relator at trial or in his direct appeal or in his subsequent post-conviction motion. The Court of Appeals affirmed the conviction and denial of post-conviction relief, except as to a minor clerical error, on June 18, 1991. State v. Clay, 812 S.W.2d 872, 873 (Mo. App. 1991). In 1992, relator contacted the circuit clerk's office requesting the "judgments and orders of my convictions for prior felonies," and he was advised that there was no record of any felony convictions under his name except the recent rape conviction. Thus, by that time, the prior conviction that the clerk had certified for the prosecutor's use during the rape trial had apparently finally been expunged from relator's file. The record does not reveal when or how this occurred or how the expungement order came to the clerk's attention at that late date. Although the 1974 conviction had been expunged from the clerk's records, no copy of the expungement order was forwarded to the Department of Corrections, and the briefing on this appeal makes clear that the Department's records still reflect relator's expunged conviction.

Once relator was made aware that his prior conviction should not have been used to deny him jury sentencing, he filed for habeas corpus relief in Platte County, but his petition was denied for improper venue under Rule 91.02. Relator then applied for habeas corpus relief, under 28 U.S.C. sec. 2254 (1994), in the United States District Court for the Western District of Missouri. The District Court denied that request on August 29, 1995, and the decision was affirmed by the United States Court of Appeals for the Eighth Circuit, for the reason that relator was first required to request such relief in the state courts. Clay v. Gammon, 89 F.3d 840 (8th Cir. 1996). Finally, relator filed the petition for writs of habeas corpus and mandamus that is the subject of this opinion.

The petition is based on the newly-discovered evidence of the expungement order. Relator contends that "[a]brogating [his] statutory right to jury sentencing by the use of a conviction which had been duly expunged according to law denied [him] his rights to a fair trial and to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Missouri Constitution." He also contends that he was "harmed . . . because the trial court considered the prior conviction in assessing [his] punishment . . . [and] determined [his] sentence on the basis of information that was not properly before the court."

The relief available under a writ of habeas corpus has traditionally been very limited, and courts are not required to issue this extraordinary writ where other remedies are adequate and available. State ex rel. Simmons v. White, 866 S.W.2d 443, 445-46 (Mo. banc 1993). Out of concern over "duplicative and unending challenges to the finality of a judgment," a person cannot usually utilize a writ of habeas corpus to raise procedurally-barred claims -- those that could have been raised, but were not raised, on direct appeal or in a post-conviction proceeding. Id. at 446. Very limited exceptions to this rule are recognized where the person seeks to use the writ "to raise jurisdictional issues or in circumstances so rare and exceptional that a manifest injustice results" if habeas corpus relief is not granted. Id. Here, relator makes no claim of jurisdictional error, but complains only that manifest injustice has occurred.

Although Simmons did not define the term "manifest injustice" for habeas cases, it is essentially the same, as the Eighth Circuit observed in Duvall v. Purkett, 15 F.3d 745, 747 and n.3 (8th Cir. 1994), cert. denied, 512 U.S. 1241, as the term "miscarriage of justice" or "fundamental miscarriage of justice" used in federal habeas cases. Following the lead of the United States Supreme Court's habeas corpus cases, and most recently Schlup v. Delo, 513 U.S. 298, 327 (1995), this Court holds that the manifest injustice or miscarriage of justice standard requires the habeas corpus...