Reuscher v. State, 76268

• Decision Date: 22 November 1994
• Docket Number: No. 76268,76268
• Citation: 887 S.W.2d 588
• Parties: Ed T. REUSCHER, III, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

Page 588

887 S.W.2d 588

Ed T. REUSCHER, III, Appellant, v. STATE of Missouri, Respondent.

No. 76268.

Supreme Court of Missouri,

En Banc.

Nov. 22, 1994.

Rehearing Denied Dec. 20, 1994.

Sean D. O'Brien, Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., John Simon, Asst. Atty. Gen., Jefferson City, for respondent.

HOLSTEIN, Judge.

This action was filed by Ed T. Reuscher, III, as a motion for post-conviction relief under Rule 29.15. This Court concludes that the petition was untimely for the purposes of relief being granted under Rule 29.15 and that no error was committed in dismissing the motion. Other issues are raised in the pleadings not cognizable in a Rule 29.15 proceeding. Affirmed.

I.

There was no evidentiary hearing on movant's Rule 29.15 motion. The facts recited are extracted from the pleadings before the circuit court.

Reuscher was convicted of first degree murder in the circuit court of Clay County and was sentenced to death on January 11, 1991. In March of 1991, Reuscher wrote a letter to his trial attorney, Robert G. Duncan, requesting copies of briefs, the court file, and the trial transcript from his case. He also asked if Mr. Duncan would be filing a Rule 29.15 motion and whether the court reporter had completed the trial transcript. Mr. Duncan responded by letter in April of 1991 and stated:

The court reporter does not have your transcript prepared yet and has requested that I secure an extension of time until July 1, 1991. Certainly I am going to do so. Second of all, if you desire to file a Motion under Rule 29.15, I will be most happy to prepare it for you for your signature if you will tell me what grounds you want raised or you may certainly file one prose [sic].

Mr. Duncan then requested an extension to file the transcript until July 1, 1991, and received an extension until May 15, 1991. The transcript was filed on May 15, 1991. However, Reuscher was not informed that the transcript was filed. The pleadings do not disclose whether Reuscher requested Mr. Duncan to prepare the motion pursuant to Rule 29.15. It is questionable Mr. Duncan could ethically honor such a request in any event.

The post-conviction motion asserts that on July 9, 1991, Reuscher wrote Mr. Duncan and inquired again about the copy of the transcript and filing a Rule 29.15 motion. Mr. Duncan, in a letter dated July 15, 1991, informed Reuscher that his transcript was filed on May 15, 1991, and it was too late to file a Rule 29.15 motion. In a later affidavit, Mr. Duncan stated,

Through inadvertence, I failed to notify Ed Reuscher of the filing of the transcript. Nor did I notify [him] that the Supreme Court had only extended the time for filing the transcript until May 15, 1991.... Mr. Reuscher has been in custody since his arrest and had no way of knowing the transcript was filed on May 15, 1991.

Reuscher's conviction of first degree murder and sentence of death were affirmed by this Court on March 24, 1992. State v. Reuscher, 827 S.W.2d 710 (Mo. banc), cert. denied, 506 U.S. 837, 113 S.Ct. 114, 121 L.Ed.2d 71 (1992).

Reuscher filed a pro se motion under Rule 29.15 on October 22, 1992, nearly seven months after his appeal was decided. Counsel was appointed and an amended Rule 29.15 motion was filed.

The Rule 29.15 amended motion makes numerous assertions of ineffective assistance of counsel. Most are allegations that counsel was ineffective in representation in matters leading up to the conviction and sentence. A second category of complaints has to do with ineffective assistance in matters involving Mr. Duncan's failure to give notice of filing the transcript on appeal. A third category of these complaints concerns Mr. Duncan's ineffectiveness on appeal because of a conflict of interest and because of counsel's failure to raise certain claims on appeal. The amended Rule 29.15 motion asserts that the prosecuting attorney failed to disclose exculpatory evidence indicating Reuscher was not present when the homicide occurred and that the state knowingly elicited false testimony tending to establish movant's presence at the scene of the homicide. Finally, the motion asserts a long list of trial errors which movant claims violated his constitutional rights.

On May 17, 1993, the circuit court dismissed the post-conviction relief motion on the ground that it was untimely because it was filed more than thirty days after the transcript on appeal was filed. Reuscher then appealed the dismissal.

II.

Movant's exclusive remedy for seeking relief from constitutional violations relating to his conviction and sentence are found in Rule 29.15. See Rule 29.15(a). The post-conviction motion must include every ground known to the movant for vacating, setting aside or correcting the conviction or sentence. Rule 29.15(e). The time limits for bringing such action are valid and mandatory. Day v. State, 770 S.W.2d 692, 695 (Mo. banc), cert. denied sub nom. Walker v. Missouri, 493 U.S. 866, 110 S.Ct. 186, 107 L.Ed.2d 141 (1989). Rule 29.15 cannot be used to obtain post-conviction review of matters which were or should have been raised on direct appeal. State v. Tolliver, 839 S.W.2d 296, 298 (Mo. banc 1992). There is no constitutional right to a state post-conviction proceeding, nor is there a constitutional right to effective counsel for the purpose of filing an initial motion for post-conviction relief. Smith v. State, 887 S.W.2d 601 (Mo. banc 1994), and Bullard v. State, 853 S.W.2d 921, 923 (Mo. banc 1993), cert. denied, 510 U.S. 979, 114 S.Ct. 475, 126 L.Ed.2d 426 (1993).

Applying the above principles here, the trial, conviction and sentence had already occurred when the transcript on appeal was filed. Mr. Duncan's failure to notify movant of the filing of the transcript necessarily occurred after the conviction and sentence and was extraneous to his duty of representation of movant in matters leading up to and including the conviction and sentence. Thus, the complaint that Mr. Duncan provided ineffective assistance at trial in failing to notify movant of the date of filing of the transcript on appeal is unreviewable in a Rule 29.15 proceeding. Nothing in Rule 29.15 compels a movant to wait until the transcript on appeal is filed to seek relief. If he had complaints about Mr. Duncan's representation, movant could have filed his motion for post-conviction relief at any time after conviction and sentence. The claims that Mr. Duncan provided ineffective trial representation and that constitutional trial error occurred were raised too late and are procedurally barred. Assuming the claims that the state failed to disclose exculpatory evidence and that the state knowingly used false testimony were known by movant prior to the conviction and sentence, they are also barred.

III.

Other matters are raised in the motion for post-conviction relief which are not reviewable in a 29.15 proceeding. The motion complains of ineffective assistance of appellate counsel. The motion also asserts that the state failed to disclose forensic evidence of blood stain analysis that would have been exculpatory to defendant and that the state knowingly elicited false testimony indicating defendant was present when the murder occurred. It is conceivable, although not alleged, that movant did not know of this conduct by the state until after the conviction and sentence.

Generally, a claim of ineffective assistance of appellate counsel cannot be raised in a post-conviction motion. Hemphill v. State, 566 S.W.2d 200, 208 (Mo. banc 1978). An exception to this general rule existed under former Rule 27.26. See Morris v. State, 603 S.W.2d 938, 941 (Mo. banc 1980). Under the former rule, a post-conviction motion could be filed after the appeal was final. Thus, raising a question of effectiveness of appellate counsel in a post-conviction motion was at least possible. Because the current rule requires a motion for post-conviction relief to be filed prior to the time the appeal is perfected, claims of ineffective assistance of appellate counsel cannot be known and, therefore, cannot possibly be asserted in a timely filed Rule 29.15 motion. After adoption of Rule 29.15, claims of ineffective assistance of appellate counsel are necessarily raised only by a motion to recall the mandate of the appellate court.

To support a motion to recall a mandate due to ineffective assistance of appellate counsel, strong grounds must exist showing that counsel failed to assert a claim of error which would have required reversal had it been asserted and which was so obvious from the record that a competent and effective lawyer would have recognized it and asserted it. State v. Zweifel, 615 S.W.2d 470, 472 (Mo.App.1981). The right to relief from an appellate mandate due to ineffective assistance of appellate counsel inevitably tracks the plain error rule; i.e., the error that was not raised on appeal was so substantial as to amount to a manifest injustice or a miscarriage of justice. Id.; Rule 30.20.

This Court has recently reiterated that state habeas corpus may not be used to challenge a final judgment after an individual's failure to pursue appellate and post-conviction remedies except to raise jurisdictional issues or in "circumstances so rare and exceptional that a manifest injustice results." State ex rel. Simmons v. White, 866 S.W.2d 443, 446 (Mo. banc 1993). The United States Supreme Court has developed more detailed guidelines for when federal habeas corpus may be used to attack a sentence in a state court. Initial federal habeas corpus relief from a state sentence is not available where a constitutional claim is defaulted under state procedural rules unless the prisoner can show that some factor external to the defense impeded counsel's efforts causing noncompliance with the state procedural rule and that such factor prejudiced the defense. Murray v. Carrier, 477 U.S. 478, 486-488, 106 S.Ct. 2639, 2644-45, 91 L.Ed.2d 397 (1986). This is referred to as the ...