State ex rel. Jay v. Sheffield, 28941.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtDaniel E. Scott
Citation272 S.W.3d 277
PartiesSTATE of Missouri, ex rel. Jeremiah W. JAY, Relator, v. The Honorable Mary SHEFFIELD and Phyllis Staley, Respondents.
Docket NumberNo. 28941.,28941.
Decision Date30 September 2008
272 S.W.3d 277
STATE of Missouri, ex rel. Jeremiah W. JAY, Relator,
The Honorable Mary SHEFFIELD and Phyllis Staley, Respondents.
No. 28941.
Missouri Court of Appeals, Southern District, Division One.
September 30, 2008.
Petition for Rehearing or Reconsideration Transfer Denied November 4, 2008.
Application for Transfer Denied January 27, 2009.

[272 S.W.3d 279]

Jeremiah W. (Jay) Nixon, Atty. Gen., Ronald S. Ribaudo, Office of Atty. Gen., Jefferson City, for relator.

Michael P. Joyce, Van Osdol & Magruder, P.C., Kansas City, for respondents.

DANIEL E. SCOTT, Presiding Judge.

After Clayton Price lost his criminal appeal, his lawyer was to file and handle a Rule 29.151 motion for post-conviction relief (PCR), but missed the filing deadline. Price later sought relief by habeas corpus, which Respondent Sheffield2

272 S.W.3d 280

granted, purporting to vacate the conviction and remand the case for retrial. We granted certiorari to determine if Respondent thereby exceeded her authority.3


A Taney County jury found Price guilty of sodomizing his fiancée's six-year-old daughter. After Price's trial counsel filed the new trial motion, he withdrew in favor of Attorney Carver, who handled the unsuccessful direct appeal. State v. Price, 165 S.W.3d 568 (Mo.App.2005).

Instead of filing a pro se PCR motion, Price hired Carver to handle his case. Carver got his filing time mixed up, thinking he had twice as long (180 days) as he actually had (90 days). See Rule 29.15(b). Carver notified Price and his family as soon as he realized that he had missed the deadline. Price hired new counsel, and 13 months later, filed a habeas corpus petition in Texas County where he was imprisoned. Respondent held an evidentiary hearing and heard testimony from Price and Carver, plus two witnesses (Miller and Guyer) whom Price called to criticize the techniques used to interview the child-victim and Price's prior legal representation on such issues. Concluding that Price was "abandoned" by Carver and entitled to relief from his procedural default for "cause and prejudice" and "manifest injustice," Respondent purported to vacate Price's conviction, remand the case for new trial, and order Price's immediate release from the Department of Corrections and transfer to the trial court for the setting of bond.

PCR Remedies and Habeas Relief

Rule 29.15 (and for guilty pleas, Rule 24.035) provides a "single, unitary, post-conviction remedy, to be used in place of other remedies," including habeas corpus. Wiglesworth v. Wyrick, 531 S.W.2d 713, 719 (Mo. banc 1976), quoted in State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 214 (Mo. banc 2001).4 A prisoner who does not raise claims in a PCR proceeding waives them, cannot assert them in a subsequent habeas petition, and is said to have "procedurally defaulted" on those claims. Jaynes, 63 S.W.3d at 214. "Thus, it is unusual for a court to consider a prisoner's petition for a writ of habeas corpus for claims that should have been raised in post-conviction proceedings." Id.

Jaynes thoroughly reviewed the relationship between PCR defaults and habeas relief under Missouri law, which tracks the U.S. Supreme Court's treatment of federal habeas petitions after PCR defaults in state court. Id. at 215-17. "In only the most exceptional cases do courts, state or federal, allow the opportunity to

272 S.W.3d 281

litigate claims after conviction that had been previously litigated or were defaulted and, thus, are procedurally barred." Id. at 215. Procedurally-defaulted prisoners like Price can obtain habeas relief only by demonstrating "cause and prejudice" or "manifest injustice" (Id. at 215-17), two standards which Jaynes summarized as follows:

Cause and Prejudice: "Cause" means "`some objective factor external to the defense [that] impeded counsel's efforts to comply with the State's procedural rule.'" Id. at 215 (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). "Prejudice" means the prisoner must show, not merely that trial errors created a possibility of prejudice, but that they "`worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'" Id. at 215-16 (quoting United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)). These are conjunctive criteria, so if "cause" is not proven, "prejudice" need not be considered. See Murray, 477 U.S. at 496-97, 106 S.Ct. 2639.

Manifest Injustice: The standard for showing manifest injustice is "actual innocence." Jaynes, 63 S.W.3d at 216. The prisoner must show, in light of newly discovered evidence, that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt. Id.

Although Respondent ruled that Price proved both grounds for relief, the record supports neither finding.

Cause and Prejudice

Respondent held, without further explanation or rationale evident from the other findings and conclusions, that Price "sufficiently established cause and prejudice." The record seems to contradict the finding of "cause," since Price bears the burden of Carver's error. See Coleman v. Thompson, 501 U.S. 722, 751-54, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Murray, 477 U.S. at 488, 106 S.Ct. 2639; State v. Hunter, 840 S.W.2d 850, 871-72 (Mo. banc 1992). If Carver's error is attributable to Price, it is not "external to the defense" and, therefore, not "cause."

Apparently recognizing this, Respondent now raises three arguments for cause— conflict of interest, affirmative misleading, and abandonment.

Conflict of Interest

Respondent claims Carver had a conflict of interest (at least potentially) in handling Price's PCR case after representing him at sentencing and on direct appeal,5 and that this constitutes "cause." It is unclear that Respondent found more than a potential conflict,6 which would not be sufficient for relief. See, e.g., Nave v. Delo, 62 F.3d 1024, 1034 (8th Cir.1995) and cases cited therein. But even if Carver's conflict was, arguendo, both actual and a "factor external to the defense," there is not a scintilla of evidence nor reasonable inference that such conflict caused the procedural default. See Nave, 62 F.3d at 1034 (must prove that actual conflict adversely affected counsel's performance); Leisure v. Bowersox, 990 F.Supp. 769, 827 (E.D.Mo.1998). See also Brown v. State, 66 S.W.3d 721, 726 n. 2 (Mo. banc 2002);7

272 S.W.3d 282

Jaynes, 63 S.W.3d at 217.8 To suggest that Carver defaulted Price's PCR claims to save his own skin utterly ignores a record that compels but one conclusion: Carver simply missed the filing deadline, an error which to his credit Carver admitted candidly, completely, and without excuse.9

Affirmatively Misled

Citing State ex rel. Taylor v. Moore, 136 S.W.3d 799 (Mo. banc 2004), Respondent also claims there was "cause" because Price was affirmatively misled. Moore involved a defendant sentenced to prison under a plea agreement providing for his placement in a program through which he could gain an early release. At the guilty plea hearing, the trial judge and defense counsel affirmatively misled the defendant about his eligibility for that program. The trial judge also sentenced the defendant, contrary to statute, without notifying prison officials or determining that the defendant was program-eligible, which he was not. Id. at 801. These external errors, not known or reasonably discoverable during the PCR filing period, resulted in an unlawful sentence. Thus, habeas relief was granted, allowing the defendant to withdraw his guilty plea. Id. at 802.

Moore does not aid Respondent. The trial judge did not mislead Price at sentencing. Rather, he carefully and accurately explained the PCR filing deadlines to Price (and Carver); that there were two different time limits for two different situations; and did not proceed until Price expressly confirmed his understanding:

[THE COURT]: [After generally explaining Price's Rule 29.15 PCR rights and how to file such a motion] It's important for you to know that there are certain time limits in connection with this motion. There are two different time limits. One of these time limits is that if you don't file an appeal of this conviction, that you have to file that motion within 180 days after you [sic] the time you're received into the custody of the Department of Corrections. That's one of the time limits, and the other time limit is, that if you do take an appeal, and there's a mandate from the Court of Appeals that affirms your conviction,

272 S.W.3d 283

then you have to file that motion, that P.C.R., post-conviction-relief motion, within 90 days — so, there's — of the mandate of the Court.

So, there's two different time limits. There's a 180-day time limit. There's a...

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