State ex rel. Koster v. McCarver

• Decision Date: 19 July 2012
• Docket Number: No. ED 97414.,ED 97414.
• Citation: 376 S.W.3d 46
• Parties: STATE of Missouri, ex rel., Chris KOSTER, Attorney General, Relator, v. Honorable Shawn McCARVER, Associate Circuit Judge, St. Francois County, Missouri, and Vicki Weible, Circuit Clerk, St. Francois County, Respondents.
• Court: Missouri Court of Appeals

376 S.W.3d 46

STATE of Missouri, ex rel., Chris KOSTER, Attorney General, Relator,

v.Honorable Shawn McCARVER, Associate Circuit Judge, St. Francois County, Missouri, and Vicki Weible, Circuit Clerk, St. Francois County, Respondents.

No. ED 97414.

Missouri Court of Appeals,

Eastern District,

Writ Division Seven.

May 15, 2012.

Motion for Rehearing and/or Transfer to

Supreme Court Denied July 19, 2012.

Application for Transfer Denied Sept. 25, 2012.

Andrew W. Hassell, Assistant Attorney General, Jefferson City, MO, for relator.

Ellen H. Flottman, Assistant Public Defender, Columbia, MO, for respondents.

Introduction

PATRICIA L. COHEN, Presiding Judge.

In this original proceeding in certiorari, the State, as relator, requests this court to quash the writ of habeas corpus issued in favor of Robert Gnade by the Circuit Court of St. Francois County.¹ The State maintains that the circuit court erred in granting the writ because Gnade failed to show the cause and prejudice necessary to overcome the procedural default of a claim that Gnade could have raised on direct appeal or in a Rule 29.15 motion. We decline to quash the record of the circuit court.

Background

On May 14, 2008, a Lincoln County jury convicted Robert Gnade of sexual assault and felonious restraint. Gary Grunick, an Assistant Public Defender with the Missouri State Public Defender System, served as Gnade's trial counsel. At the time of Gnade's trial, and unbeknownst to Mr. Grunick, the Lincoln County Circuit Court employed a program that allowed potential jurors to “opt out” of jury service by performing six hours of community service and paying a $50 fee to cover administrative costs (the “opt-out program”). Twelve hundred people were summoned for jury duty during the term in which Gnade's jury trial occurred. Of those 1200 people, ten persons participated in the opt-out program.

Tom Gabel, the District Defender for Lincoln County, and Mr. Grunick's supervisor, first learned of the existence of the opt-out program on or about July 8, 2008. On July 11, 2008, the Circuit Court of Lincoln County sentenced Movant to ten years in prison. Mr. Grunick was still unaware of the opt-out program at the time of Gnade's sentencing.

Nancy McKerrow, an attorney in the appellate division of the public defender system, represented Gnade on appeal. In his appeal, Gnade did not raise any issues relating to the jury selection procedures in Lincoln County. We affirmed his conviction in State v. Gnade, 284 S.W.3d 782 (Mo.App. E.D.2009).

In a deposition prepared for the circuit court, Ms. McKerrow testified that she “wrote the brief” for Gnade's case during February 2009. Ms. McKerrow further testified that she had reviewed Gnade's file and found nothing in the file about the opt-out program. She stated that, had she known about the program, something “would have been in the file” and she would have raised a claim pertaining to it on appeal. Gnade did not file a motion for post-conviction relief.

In August 2010, this court handed down Preston v. State, 325 S.W.3d 420 (Mo.App. E.D.2010), which considered whether the Lincoln County opt-out program substantially failed to comply with the Missouri statutes governing juries, Sections 494.400 to 494.505. Id. at 421. We held that: “[T]he [Lincoln County Circuit Court's] practice of allowing otherwise qualified jurors to opt-out of obligatory jury service [was] a fundamental and systemic deviation from the declared policy of sections 494.400 to 494.505.” Id. at 426. We reversed the conviction of the defendant and remanded the case for a new trial. Id.

In October 2010, appellate public defender Ellen H. Flottman of the Columbia office received documents from the Circuit Clerk of Lincoln County revealing that potential jurors used the opt-out program to avoid jury service during the term of Gnade's trial. Pursuant to Section 494.465, Flottman filed an amended motion for new trial in Gnade's case on October 25, 2010. Because the trial court did not rule on the motion, it was denied by operation of law on January 23, 2011.

On March 10, 2011, Gnade filed a petition for a writ of habeas corpus in the Circuit Court of St. Francois County. In his petition, Gnade claimed that the warden of the Eastern Reception, Correctional and Diagnostic Center was unlawfully depriving him of his liberty. More specifically, Gnade argued that he was unlawfully convicted because the Lincoln County opt-out program deprived him of due process of law and a jury drawn from a fair cross-section of the population in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri Constitution. In March 2011, the circuit court ordered the warden to show cause as to why the court should not grant Gnade's petition for habeas relief.

In the warden's response to the court's show cause order, he contended that Gnade was not entitled to a writ of habeas corpus because he had defaulted his constitutional claim by neglecting to raise it at trial, on direct appeal, or through a timely post-conviction motion. The circuit court held a hearing, and, in September 2011, it issued the writ of habeas corpus and ordered the warden to remand Gnade to Lincoln County for a new trial. The State filed a petition for a writ of certiorari in this court requesting that we quash the writ of habeas corpus. We issued a writ of certiorari ordering certification and return to this court of a full copy of the record for our review. Thereafter, the Clerk of the St. Francois County Circuit Court filed the record with this court.

Standard of Review

“A writ of certiorari requires an inferior court to produce a certified record of a particular case for review for irregularities.” State ex rel. Koster v. McElwain, 340 S.W.3d 221, 231 (Mo.App. W.D.2011) ( citing Black's Law Dictionary 228 (6th Ed.1990)). “It is available to correct judgments that are in excess or an abuse of jurisdiction, and that are not otherwise reviewable by appeal.” State ex rel. Nixon v. Sprick, 59 S.W.3d 515, 518 (Mo. banc 2001). “A grant of a writ of habeas corpus in a lower court is reviewed by writ of certiorari.” Id. However, we limit our review to determining whether the circuit court exceeded the limits of its authority or abused its discretion. See McElwain, 340 S.W.3d at 231.

“An abuse of discretion occurs only when ‘the trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.’ ” McElwain, 340 S.W.3d at 231 ( quoting State v. Stewart, 313 S.W.3d 661, 665 (Mo. banc 2010)). “Certiorari presents only questions of law on the record brought up by the return and does not permit consideration of issues of fact.” State ex rel. Reorganized School Dist. R–2 of Newton County v. Robinson, 276 S.W.2d 235, 236 (Mo.App.1955). “[E]very lawful intendment will be made in favor of the determination and the regularity of the proceedings below.” State ex rel. Shartel v. Skinker, 324 Mo. 955, 25 S.W.2d 472, 478 (Mo. banc 1930). If we determine that the circuit court has erred, then we quash the record of the court that granted the writ. See, e.g., State ex rel. Nixon v. Jaynes, 73 S.W.3d 623, 624 (Mo. banc 2002) (per curiam). If however, we determine that the circuit court did not err, we decline to quash the record. See, e.g., McElwain, 340 S.W.3d at 258.

Discussion

In its first point, the State claims that the circuit court erred in granting Gnade a writ of habeas corpus because Gnade did not show the “cause” necessary to overcome the default of his underlying claim. The State contends that Gnade defaulted his underlying claim by failing to raise it either on direct appeal or in a post-conviction motion. Gnade, however, contends that he timely raised his claim in a motion for a new trial as provided for in Section 494.465. In the alternative, Gnade contends that he demonstrated cause to overcome any default by establishing that he was unaware of the factual basis for the claim at the time of his direct appeal and thereafter.

“A writ of habeas corpus can be issued when a person is held in detention in violation of the constitution or laws of the state or federal government.” State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 214 (Mo. banc 2001). However, “habeas corpus is not a substitute for appeal or post-conviction proceedings.” State ex rel. Simmons v. White, 866 S.W.2d 443, 446 (Mo. banc 1993). In general, a defendant may not raise a claim in a habeas proceeding that he failed to raise on direct appeal. See State ex rel. Engel v. Dormire, 304 S.W.3d 120, 125 (Mo. banc 2010). Moreover, Rules 29.15 and 24.035 are “designed to provide a ‘single, unitary, post-conviction remedy, to be used in place of other remedies' including the writ of habeas corpus.” Jaynes, 63 S.W.3d at 214 ( quoting Wiglesworth v. Wyrick, 531 S.W.2d 713, 715–16 (Mo.1976)).

A defendant who fails to raise a challenge to his conviction through post-conviction proceedings “is said to have procedurally defaulted on those claims.” Jaynes, 63 S.W.3d at 214. When a defendant procedurally defaults on a claim by failing to raise it in a post-conviction proceeding, he waives the claim and “cannot raise [it] in a subsequent petition for habeas corpus.” Jaynes, 63 S.W.3d at 214. There is, however, an exception to the procedural default rule if the defendant shows both “cause” for the failure to timely raise his claim and “prejudice” resulting from such failure. McElwain, 340 S.W.3d at 244 ( quoting Jaynes, 63 S.W.3d at 215 (internal quotation marks omitted)).

Both the State and Gnade agree that Gnade did not raise the claim outlined in his habeas petition either on direct appeal or in a post-conviction motion. Consequently, the State contends that Gnade defaulted on his underlying claim for habeas relief. Gnade, however, contends that he did not...