Decision Date08 June 2010
Docket NumberNo. WD 71055.,WD 71055.
Citation323 S.W.3d 383
PartiesBernardo O. COSTA, Appellant, v. Arthur E. ALLEN, Respondent.
CourtMissouri Court of Appeals


Appellant acting pro se.

Shaun Mackelprang and Kathleen Robertson, Jefferson City, MO, for respondent.



Bernardo Costa appeals the trial court's judgment dismissing his tort action for damages against the attorney representing him in his motion for post-conviction relief. Costa asserted claims of breach of fiduciary duty and legal malpractice. The judgment is affirmed.

Procedural Background

Costa was convicted of the first-degree statutory rape of his daughter. See State v. Costa, 11 S.W.3d 670 (Mo.App.1999). The conviction was affirmed on appeal. Id. Costa filed a motion for post-conviction relief under Rule 29.15. See Costa v. State, 85 S.W.3d 758 (Mo.App.2002). The denial of that motion was affirmed. Id.

Thereafter, Costa brought a civil action for legal malpractice against Arthur E. Allen, the public defender who represented Costa in his Rule 29.15 proceeding. Costa's petition was dismissed with prejudice. Costa appealed. After opinion in this court, the Missouri Supreme Court accepted transfer. See Costa v. Allen, 274 S.W.3d 461, 462 (Mo. banc 2008). After holding that Costa failed to state a cause of action, the Court nevertheless remanded the case to the trial court because the court had denied Costa the opportunity to file an amended petition. Id. at 463-64. Upon remand, Costa filed an amended petition.

Allegations of the Amended Petition

In his petition, Costa alleged that at the time of his post-conviction proceeding, he directed Mr. Allen, as post-conviction counsel, to secure the attendance of Dr. Allen Scott at the motion hearing. Dr. Scott had testified in the criminal trial as to the size of the victim's hymenal opening. Costa wished to employ certain documents to demonstrate the falsity of Dr. Scott's testimony. Costa also wanted to show at the motion hearing that Dr. Lori Frasier did not measure the hymenal opening, but simply relied on Dr. Scott's false measurements. Costa further wanted to show that Dr. Frasier did not even review pertinent photographs, although the photographs were available to her. Costa wanted to compel the attendance of Loletta Combs for the same purpose. Costa also alleged that he told counsel to secure the attendance at the post-conviction hearing of Melissa Welpman, along with Loletta Combs, to introduce their notes in order to prove that their trial testimony and that of another person, Lee Rear, was false. Costa also wanted to prove that an insect in his daughter's vaginal area was misidentified as a pubic crab and that his daughter's statements were prompted by leading questions. Costa wanted to show that the behaviors allegedly acted out by Costa's daughter did not occur and that any testimony to that effect was false testimony presented by the family of Lee Rears.

Costa alleged that Allen, for “his own reasons” and to “further the interests” of the State, did not follow his instructions to secure the attendance of the witnesses. He alleged that Allen's actions constituted an intentionally dishonest breach of fiduciary duty and a constructive fraud, as well as a negligent breach of duty. There is no allegation that Defendant Allen was bribed by money or otherwise participated in a conspiracy to sell an innocent man “down the river” for some other personal motive. The gist of Costa's petition is that Allen was uncooperative (dishonestly, because he did not communicate to Costa his refusal to cooperate) and chose to “further the interests” of the State by refusing to recognize the wisdom of Costa's insights as to how to get a new trial. He alleged that Allen attempted to get pertinent documents into evidence, but that he could not because the witnesses necessary to sponsor the documents were not present. He alleged that this failure resulted in the inadmissibility of certain documents, which would have shown that he was “erroneously convicted.” Costa sought money compensation, including punitive damages, for the alleged malpractice of Mr. Allen.

Trial Court Ruling

Defendant Allen moved to dismiss the amended complaint, contending that Costa failed to state a claim for relief. He also contended that he was protected by official immunity. The trial court granted the motion, dismissing the case with prejudice. Costa appeals.

Costa's Collateral Attack on the Conviction

Numerous issues are presented in this appeal. Many are briefed by the State. Because this appeal involves the dismissal of plaintiff's petition, and because the factual allegations of the petition are taken as true for purposes of our analysis, the issues presented are issues of law. See Nazeri v. Mo. Valley Coll., 860 S.W.2d 303, 306 (Mo. banc 1993). Although there are multiple apparent legal obstacles to Costa's pursuit of this claim, we select one as easily dispositive of this appeal: the public policy doctrine that the law does not allow a collateral attack of a valid criminal conviction.

Costa asserts in his petition that he was erroneously convicted of the statutory rape of his daughter. He alleges that witnesses were lying, that his daughter was coached, and that there was a scheme to convict him propagated by the foster family (the family of Lee Rears) with whom his daughter spent time. He thus implies, but does not expressly plead, that he is actually innocent, as opposed to legally innocent, of the crime of the statutory rape of his daughter. The distinction between implying and expressing is not insignificant, when one considers that it is possible to be framed with bogus evidence, and thus convicted, of a crime one actually did commit.

A criminal conviction is achieved only after the determination of the existence of proof beyond a reasonable doubt. The law allows and provides for appeals of the direct conviction. Missouri law further allows motions for post-conviction remedies and for appeal of the rulings thereon. Missouri law provides an opportunity for counsel at the post-conviction stage as well as at the trial stage. See sections 545.820, 547.360.5, RSMo 2000; Mo. Const., art. 1, sec. 18(a). See also Rules 29.15(e), 24.035(e).

As long as a conviction is not set aside by an appeal or a post-conviction procedure, it remains a final judgment, and it stands as presumptive proof to the entire world for all purposes that the person convicted was in fact actually guilty. While the defendant may deny guilt, the denial is entirely without legal import as long as the judgment of conviction stands. The judgment conclusively binds the defendant and precludes his assertion of a collateral claim as to which his actual innocence is an essential element. See State ex rel. O'Blennis v. Adolf, 691 S.W.2d 498, 502-04 (Mo.App.1985).

The post-conviction proceeding as to which Costa claims legal malpractice was a proceeding under Missouri Supreme Court Rule 29.15, which allows challenge of a conviction or sentence on grounds that the conviction or sentence violates the constitution or laws of this state or the United States, including claims of ineffective assistance of counsel. The rule also allows challenge on the basis that the trial court lacked jurisdiction to impose the sentence, or that the sentence was in excess of that permitted by law. Rule 29.15 is not designed to create a forum for a second opportunity to discredit the witnesses who testified at trial. It is not a retrial in itself. If, however, the post-conviction movant pleads and proves that the trial defense counsel was guilty of constitutionally ineffective assistance and that such ineffectiveness was prejudicial, the movant can obtain the relief of an entirely new trial. Then the movant, of course, can have a “do-over” as to the impeachment of the witnesses against him in the criminal trial.

Here, Costa does not allege or seem to understand that the 29.15 motion is about proving ineffectiveness of counsel at the trial level. He pleads his claim against Arthur Allen as though Mr. Allen should have proceeded as though the 29.15 case were intended to allow a chance to bring prosecution witnesses back into the courtroom and impeach them with their own notes and records-in other words, to directly cast doubt on the guilty verdict by essentially re-trying the case. But because a proceeding under Rule 29.15 is not a retrial, at best it could have indirectly cast doubt on the verdict by demonstrating ineffective assistance of trial counsel. In any event, overlooking this lapse in the pleading, we will assume for argument purposes that Costa wishes to be understood as asserting that if post-conviction counsel had done what Costa had wanted counsel to do, counsel would have been able to successfully demonstrate the constitutional ineffectiveness of trial counsel.

It is settled that a claim for relief from a valid conviction cannot be asserted in a claim of legal malpractice. See, e.g., Johnson v. Raban, 702 S.W.2d 134, 138 (Mo.App.1985). In Johnson, the convicted client, after losing his direct appeal and his post-conviction motion, sued the attorney who represented him in the criminal trial. Id. at 135. The defendant attorney moved to dismiss the action on the ground of collateral estoppel. The trial court took note of the reported cases involving the plaintiff client and held that the action was properly barred by collateral estoppel. Id. at 136. Noting that the standard for determining ineffective assistance of counsel in a post-conviction proceeding is for practical purposes identical with the standard required for submission of a legal malpractice claim, the court found that the application of the doctrine of collateral estoppel was appropriate. Id. at 137-38. The court went on, however, beyond the facts of that case, to invoke the public policy considerations that were...

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  • Rosenberg v. Shostak
    • United States
    • Missouri Court of Appeals
    • August 13, 2013
    ...him from proving proximate cause. State ex rel. O'Blennis v. Adolf, 691 S.W.2d 498, 501–04 (Mo.App. E.D.1985); accord Costa v. Allen, 323 S.W.3d 383, 385 (Mo.App. W.D.2010); Kuehne v. Hogan, 321 S.W.3d 337, 342 (Mo.App. W.D.2010). A majority of states that have considered this issue have ad......
  • Rosenberg v. Shostak
    • United States
    • Missouri Court of Appeals
    • March 12, 2013
    ...from proving proximate cause. State ex rel. O'Blennis v. Adolf, 691 S.W.2d 498, 501-04 (Mo. App. E.D. 1985); accord Costa v. Allen, 323 S.W.3d 383, 385 (Mo. App. W.D. 2010); Kuehne v. Hogan, 321 S.W.3d 337, 342 (Mo. App. W.D. 2010). A majority of states that have considered this issue have ......
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    ...reached the same conclusion in a case with similar facts which is handed down contemporaneously with this case. See Costa v. Allen, 323 S.W.3d 383, 387 (Mo.App. W.D.2010) (holding that a criminal defendant's malpractice claim against his post-conviction counsel was barred by the presumption......
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