Duvall v. Purkett, No. 93-1778

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore FAGG, BOWMAN, and LOKEN; LOKEN
Citation15 F.3d 745
PartiesHarold Lee DUVALL, Appellant, v. James D. PURKETT, Appellee.
Docket NumberNo. 93-1778
Decision Date31 January 1994

Page 745

15 F.3d 745
Harold Lee DUVALL, Appellant,
v.
James D. PURKETT, Appellee.
No. 93-1778.
United States Court of Appeals,
Eighth Circuit.
Submitted Oct. 13, 1993.
Decided Jan. 31, 1994.

Robert J. Thomas Jr., St. Louis, MO, argued, for appellant.

John W. Simon, Asst. Atty. Gen., Jefferson City, MO, argued, for appellee.

Before FAGG, BOWMAN, and LOKEN, Circuit Judges.

LOKEN, Circuit Judge.

This case again raises issues of exhaustion of state remedies and procedural default when a Missouri inmate seeks federal habeas corpus relief without having filed a post-conviction motion under Missouri Supreme Court Rule 24.035. We now have the benefit of a significant clarification of Missouri law on this subject. See Simmons v. White, 866 S.W.2d 443 (Mo.Sup.Ct.1993).

Page 746

In December 1989, Harold Lee Duvall pleaded guilty to charges of selling marijuana. His plea agreement, as he explained it to the trial judge at his change-of-plea hearing, provided that Duvall would be sentenced as a prior and persistent offender to two concurrent twenty-five year prison terms. In January 1990, he was sentenced in accordance with the plea agreement. Duvall did not appeal or seek post-conviction relief in the Missouri courts.

In April 1992, Duvall filed this petition for habeas corpus relief, claiming that his guilty plea was involuntary because his ineffective trial counsel failed to advise that, as a persistent offender, Duvall would be required to serve sixty percent of his sentence before being eligible for parole. See Mo.Rev.Stat. Sec. 558.019(2)(2). The district court 1 denied relief, concluding that Duvall's claims were procedurally defaulted. Duvall appeals. We affirm, but only after first considering whether Duvall should be required to exhaust state remedies by petitioning for a writ of habeas corpus under Missouri Supreme Court Rule 91.

Exhaustion of State Remedies.

A federal writ of habeas corpus "shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. Sec. 2254(b); see Simpson v. Camper, 927 F.2d 392 (8th Cir.1991). A petitioner such as Duvall who has not sought state post-conviction relief should be required to do so before pursuing federal habeas relief unless he has "no available, nonfutile state remedies," Daniels v. Jones, 944 F.2d 429, 430 (8th Cir.1991), or the federal court exercises its discretion to accept the State's waiver of the exhaustion requirement, see Hampton v. Miller, 927 F.2d 429, 431 (8th Cir.1991). In this case, the district court did not require Duvall to exhaust and did not discuss whether either of these exceptions applies. Therefore, we will first take up the exhaustion issue.

A. Futility. Determining when Missouri inmates have an available, nonfutile state post-conviction remedy has been difficult in recent years. Effective January 1, 1988, the Missouri Supreme Court adopted Rule 24.035. This Rule permits a convicted felon to challenge his conviction or sentence on federal constitutional grounds by filing "a motion to vacate, set aside or correct the judgment or sentence.... within ninety days after the movant is delivered to the custody of the department of corrections." Rule 24.035(b). The Rule requires the movant to "include every ground known to [him]." Rule 24.035(d). Rule 24.035 is "the exclusive procedure by which such person may seek relief in the sentencing court for the claims enumerated." Rule 24.035(a). Failure to file the Rule 24.035 motion within ninety days "shall constitute a complete waiver of any right to proceed under this Rule." Rule 24.035(b). 2

The difficult futility question has been whether the traditional state habeas corpus remedy is available to Missouri inmates who failed to seek relief under Rule 24.035 but who allege, for example, that their claims were unknown during Rule 24.035's ninety-day period, or that their failure to file a Rule 24.035 motion was caused by ineffective assistance of counsel. Because of this uncertainty in state law, we have been inclined in some cases to accept the State's waiver of its exhaustion defense. See Dickens v. Armontrout, 944 F.2d 461, 462 (8th Cir.1991); Hampton v. Miller, 927 F.2d at 431. With exhaustion waived, we could then deal with the petitioner's procedural default under Rule 24.035 as an issue of federal law, as the district court did here.

In Simmons v. White, the Missouri Supreme Court clarified this issue of state law. Simmons addressed the precise question of whether the state habeas remedy is open to

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an inmate who did not seek Rule 24.035 relief:

Simmons ... seeks to utilize habeas corpus as a vehicle to raise claims ... that should have been raised by direct appeal and by Rule 24.035. While Simmons' procedural default does not absolutely preclude him from seeking habeas corpus for this purpose, the scope of review to which he is entitled is extremely limited.

Simmons, 866 S.W.2d at 446. Building upon its...

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24 practice notes
  • Holland v. Horn, No. CIV.A. 99CV2551.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • April 25, 2001
    ...O'Dell v. Netherland, 95 F.3d 1214, 1241 (4th Cir.1996), aff'd, 521 U.S. 151, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997); Duvall v. Purkett, 15 F.3d 745, 748 (8th Cir.1994) (holding that petitioner's confusion as to the applicability of a 90-day time limit for filing state collateral claims doe......
  • Victor v. Hopkins, No. 95-2801
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 1, 1996
    ...a state procedure is in doubt, federal courts "should be hesitant to accept State waivers of the exhaustion defense." Duvall v. Purkett, 15 F.3d 745, 747 (8th Cir.), cert. denied, 512 U.S. 1241, 114 S.Ct. 2753, 129 L.Ed.2d 870 In its brief, the state argues that it has waived the exhaustion......
  • Lemay v. Murphy, Civil Action No. 07-10785-RGS.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • January 22, 2008
    ...requirement would now find the claims procedurally barred"); Thomas v. Gibson, 218 F.3d 1213, 1221 (10th Cir.2000); Duvall v. Purkett, 15 F.3d 745 (8th Cir.1994) (requiring showing of cause and prejudice with respect to futile, unexhausted federal claim); see Weeks v. Bowersox, 119 F.3d 134......
  • Sloan v. Delo, No. 94-2122
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 2, 1995
    ...would be futile or unless the state waives this requirement under certain circumstances. 28 U.S.C. Sec. 2254(b); see Duvall v. Purkett, 15 F.3d 745 (8th Cir.1994). Some of Sloan's claims fail because they were not properly presented to the state courts, others because he cannot show deficie......
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24 cases
  • Holland v. Horn, No. CIV.A. 99CV2551.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • April 25, 2001
    ...O'Dell v. Netherland, 95 F.3d 1214, 1241 (4th Cir.1996), aff'd, 521 U.S. 151, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997); Duvall v. Purkett, 15 F.3d 745, 748 (8th Cir.1994) (holding that petitioner's confusion as to the applicability of a 90-day time limit for filing state collateral claims doe......
  • Victor v. Hopkins, No. 95-2801
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 1, 1996
    ...a state procedure is in doubt, federal courts "should be hesitant to accept State waivers of the exhaustion defense." Duvall v. Purkett, 15 F.3d 745, 747 (8th Cir.), cert. denied, 512 U.S. 1241, 114 S.Ct. 2753, 129 L.Ed.2d 870 In its brief, the state argues that it has waived the exhaustion......
  • Lemay v. Murphy, Civil Action No. 07-10785-RGS.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • January 22, 2008
    ...requirement would now find the claims procedurally barred"); Thomas v. Gibson, 218 F.3d 1213, 1221 (10th Cir.2000); Duvall v. Purkett, 15 F.3d 745 (8th Cir.1994) (requiring showing of cause and prejudice with respect to futile, unexhausted federal claim); see Weeks v. Bowersox, 119 F.3d 134......
  • Sloan v. Delo, No. 94-2122
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 2, 1995
    ...would be futile or unless the state waives this requirement under certain circumstances. 28 U.S.C. Sec. 2254(b); see Duvall v. Purkett, 15 F.3d 745 (8th Cir.1994). Some of Sloan's claims fail because they were not properly presented to the state courts, others because he cannot show deficie......
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