Drake v. State, 53897
| Decision Date | 17 May 1988 |
| Docket Number | No. 53897,53897 |
| Citation | 753 S.W.2d 65 |
| Parties | Ronald DRAKE, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Dorothy Mae Hirzy, Sp. Public Defendant, Michael C. Todt, St. Louis, for appellant.
William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.
Movant, Ronald Drake, appeals from the denial of his second Rule 27.26 motion without an evidentiary hearing. Drake was convicted by a jury of first degree murder and sentenced to life imprisonment. His conviction was affirmed on direct appeal. State v. Drake, 518 S.W.2d 335 (Mo.App., E.D.1975). Drake then brought his first Rule 27.26 motion which was denied after an evidentiary hearing. The denial of the motion was affirmed on appeal. Drake v. State, 582 S.W.2d 711 (Mo.App., E.D.1979). He now appeals from the denial of his second Rule 27.26 motion; Drake alleges that the trial court violated his constitutional rights by not instructing the jury on the lesser degrees of murder and that he received ineffective assistance when counsel did not object to the trial court's decision to only offer a first degree murder instruction. We affirm the motion court's order denying Drake's second Rule 27.26 motion.
Rule 27.26 specifically states that a second motion cannot be maintained "where the ground presented is new but could have been raised in the prior motion...." Rule 27.26(d). The rule is intended, where possible, to discover and adjudicate all claims for relief in one application. Futrell v. State, 667 S.W.2d 404, 408 (Mo. banc 1984). The movant has the burden of establishing that any new grounds which are raised in a second Rule 27.26 motion could not have been asserted in the first motion. Willen v. State, 648 S.W.2d 134, 135 (Mo.App., E.D.1983). Drake's first Rule 27.26 motion did not allege that the trial court erred when it determined that only an instruction on first degree murder was proper. His second motion fails to allege any reason as to why this claim could not have been presented in the first motion. As to the allegation of ineffective assistance of counsel, Drake's first Rule 27.26 motion did raise this issue. It is forbidden to entertain a claim in a second Rule 27.26 motion where the ground presented was raised and determined adversely to movant, Drake, in a prior motion. Rule 27.26(d); See Haynes v. State 552 S.W.2d 284, 285 (Mo.App., E.D.1977). This rule applies even if a different theory is suggested. Haynes, 552 S.W.2d at 285. Thus, neither of Drake's claims is cognizable.
Moreover, a claim of instructional error is generally not cognizable in a Rule 27.26 proceeding. Newlon v. State, 705 S.W.2d 590, 593 (Mo.App., E.D.1986). For, if an issue could have been raised on direct appeal, even though it is a constitutional claim, it cannot be raised in a post-conviction motion except where fundamental fairness requires otherwise and only in "rare and exceptional" circumstances. Bradford v. State, 694 S.W.2d 760, 761 (Mo.App., E.D.1985). A constitutional claim must be advanced at the earliest time consistent with good pleading and orderly procedure, and it must be kept alive during the course of the proceedings. Stokes v. State, 688 S.W.2d 19, 22-23 (Mo.App., E.D.1985). Drake's claim of instructional error could have been raised on direct appeal and he proposes no "rare and exceptional" circumstances which would excuse his failure to do so.
We now examine Drake's claim of ineffective assistance of counsel. In order to establish such a claim, he must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). And, examining ex gratia the substance of Drake's claim, this court cannot find that the motion court's determination was clearly erroneous. The motion court decided that Drake received effective assistance of co...
To continue reading
Request your trial
-
Watkins v. State
...in a proceeding under Rule 27.26 unless fundamental fairness so requires and only in rare and exceptional circumstances. Drake v. State, 753 S.W.2d 65, 67 (Mo.App.1988); Paynes v. State, 752 S.W.2d 331, 333 (Mo.App.1988). No such circumstances exist here, as explained in the next four In St......
-
State v. Ward
...failure to object to other court instructions to the jury, is not generally cognizable under a Rule 29.15 Motion. See Drake v. State, 753 S.W.2d 65, 67 (Mo.App.1988). In addition, we are not required to search the record in an attempt to find meaningful examples to support defendant's Denia......
-
Donaldson v. State, 55897
...post-conviction relief except where required by fundamental fairness and only in "rare and exceptional" circumstances. Drake v. State, 753 S.W.2d 65, 67 (Mo.App.1988). Movant's contention the instruction was improperly given could have been raised on appeal, for counsel preserved an objecti......
-
Goforth v. State, 55503
...direct appeal but was not, it may not be raised in a post-conviction motion absent rare and exceptional circumstances. Drake v. State, 753 S.W.2d 65, 67 (Mo.App.1988). We find no evidence in the record before us to indicate circumstances so exceptional that fundamental fairness demands the ......