Case Law Update: 2011-2014 Cumulative Edition

Holding: One of the exceptions to allow review of procedurally defaulted claims is “cause and prejudice.” The question here is whether Defendant can meet this test. A defendant is entitled to effective assistance of counsel on appeal and failure to perfect a notice of appeal is ineffective. “Cause” requires that the procedural default be “external” to the defense, which might at first blush appear to not be met here. But the U.S. Supreme Court has held that where the procedural default is the result of ineffective assistance of counsel, the default is imputed to the State and this renders the “cause” “external” to the defense. Here, counsel was ineffective in failing to perfect the appeal, and Defendant was prejudiced by being denied an appeal. Sentence vacated so Defendant can be resentenced, and then file a timely notice of appeal.
Phelps v. State, No. WD73263 (Mo. App. W.D. 11/1/11):

Holding: For purposes of day-counting under Rule 24.035’s requirement that a pro se motion be filed within 180 days of delivery to the Department of Corrections, the day of the triggering event (i.e., the day Movant was delivered to the DOC) is not included in computing the 180 days per Rule 44.01(a), which provides that “in computing any period of time [under the rules] … the day of the act, event, or default after which the designated period of time begins to run is not to be included.”
Middleton v. State, No. WD73290 (Mo. App. W.D. 10/18/11):

Holding: Where Movant filed a second motion to reopen postconviction proceedings on grounds of “abandonment,” which the motion court denied via a docket entry, this was not an appealable “judgment” under Rule 74.01(a) but only a non-appealable “order”; however, the motion court does have “jurisdiction” to consider a second motion to reopen.
Cornelious v. State, No. WD72866 (Mo. App. W.D. 9/27/11):

Holding: Even though 29.15 movant filed multiple amended motions and the last motion was beyond the time limit for filing an amended motion, the Western District considers the claims in the last amended motion because the State failed to raise a timeliness objection in the motion court, so the timeliness issue is waived.

Editor’s note: The Eastern District holds that timeliness is not waived despite failure to raise it in the motion court. See Swofford v. State, 323 S.W.3d 60 (Mo. App. E.D. 2010). As of October 2011, the Missouri Supreme Court is considering the issue.
Sanford v. State, No. WD72291 (Mo. App. W.D. 7/26/11):

Holding: Where motion court failed to appoint counsel for movant in 24.035 case who had indicated she was indigent, this was erroneous because Rule 24.035(e) mandates that counsel be appointed for indigent movants.
Gerlt v. State, No. WD72225 (Mo. App. W.D. 4/12/11):

(1) State cannot raise untimeliness of 24.035 motion for first time on appeal because issue is waived if not raised as an affirmative defense in motion court; and (2) claim that motion court’s Findings were inadequate is not preserved for appeal unless Movant files a motion to amend judgment pursuant to Rule 78.07(c).

Facts: Movant filed a pro se Rule 24.035 motion late. This was not recognized in the motion court, and the motion court denied relief on the merits. Movant appealed, claiming that the motion court’s Findings were inadequate. The State claimed the appeal should be dismissed because the pro se motion was untimely.

Holding: (1) After J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009), failure to file a timely motion is not jurisdictional. Therefore, the untimeliness of a postconviction motion can only be raised as an affirmative defense, and the defense is waived if not timely raised. Here, the defense is not timely raised because it was not raised in the motion court, but for the first time on appeal. This Court recognizes that the Eastern and Southern Districts have both held to the contrary, but this Court disagrees with them. Thus, the appeal should not be dismissed on this ground. (2) On the merits, Movant claims that the motion court’s Findings are inadequate under Rule 24.035(j) for meaningful appellate review. However, Movant failed to file a motion to amend the judgment under Rule 78.07(c), which provides “[i]n all cases, allegations of error relating to the form or language of the judgment, including the failure to make statutorily required findings, must be raised in a motion to amend the judgment in order to be preserved for appellate review.” This Court now expressly holds that Rule 78.07(c) applies to postconviction proceedings. Since Movant failed to file a motion to amend judgment, the issue is not preserved.
State ex rel. Koster v. McElwain, No. WD73211 (Mo. App. W.D. 3/29/11):

(1) Petitioner was able to raise Brady claim and jury misconduct claim in state habeas case because he showed cause and prejudice for not raising them on direct appeal or in postconviction; (2) State violated Brady where it failed to disclose that Sheriff knew that another person had threatened murder victim and police knew of witness who would also indicate another person threatened victim; (3) jury committed misconduct in seeking out a map that was not introduced into evidence to determine Petitioner’s guilt.

Facts: Petitioner was convicted at a jury trial of first degree murder of his mother. He lost his direct appeal and Rule 29.15 case. He won relief in U.S. District Court, but the 8^th Circuit reversed. He then filed a state habeas corpus case alleging various claims. The habeas court granted relief, and the State sought a writ of certiorari challenging the grant of relief.

Holding: The State argues that Petitioner’s claims are procedurally barred because he did not raise them in his direct appeal or Rule 29.15 case. However, claims are not barred in a habeas case if (1) the claim relates to a jurisdictional (authority) issue; or (2) the petitioner establishes manifest injustice because newly discovered evidence makes it more likely than not that no reasonable juror would have convicted him (a “gateway innocence” claim); or (3) the petitioner establishes the presence of an objective factor external to the defense, which impeded his ability to comply with the procedural rules for review of claims, and which worked to his actual and substantive disadvantage infecting his entire trial with constitutional error (a “gateway cause and prejudice” claim). Here, Petitioner’s claims fall under exception number three. He has shown that the State engaged in Brady violations because the Sheriff knew that another person had threatened the murder victim and law enforcement also failed to disclose that another witness had similar knowledge. Even though there may not have been written reports about this, Brady still required the State to disclose it, and even though the prosecutor may not have personally known about it, Brady makes the State responsible for police nondisclosure. Since these thing weren’t disclosed, Petitioner could not have known about them or raised them on direct appeal or in his Rule 29.15 case. Even though the Eastern District had held that Petitioner’s evidence at that time was insufficient to allow Petitioner to introduce evidence that another person did the crime, Petitioner has introduced new evidence in the habeas case directly linking another person to the crime, so all this evidence would now be admissible. Furthermore, the jury committed misconduct by seeking out a map that was not in evidence to use to convict Petitioner. The State contends that Petitioner has the burden to prove prejudice from this, but there is nothing in Missouri law that deprives a habeas petitioner of the benefit of the presumption of prejudice from such jury misconduct; Petitioner would have had such a presumption if this matter was raised on direct appeal. Here, the presumption applies and the State failed to rebut it. Grant of writ of habeas corpus affirmed.
Snyder v. State, No. WD72071 (Mo. App. W.D. 3/22/11):

Even though Movant filed his Rule 24.035 motion late, where the State did not raise this in the motion court as a defense, this could not be raised for the first time on appeal since statutes of limitation can be waived.

Facts: Movant filed a Rule 24.035 motion late. However, neither the State nor the motion court raised this issue in the motion court. The motion court denied relief on the merits. Movant appealed the merits. The State claimed for the first time on appeal that the appeal should be dismissed because the motion was untimely filed.

Holding: Rule 24.035(b) provides that failure to timely file a postconviction motion waives the postconviction claims. In Andrews v. State, 282 S.W.2d 372 (Mo. App. W.D. 2009), the Western District held that failure to challenge timeliness is not an issue of jurisdiction but just an issue of trial error. The Eastern District disagreed with this in Swofford v. State, 323 S.W.3d 60 (Mo. App. E.D. 2010). However, Swofford is in conflict with the rule that statutes of limitation are not jurisdictional and can be waived. Rule 55.08 requires that statute of limitations and waiver defenses be pleaded by the defendant (State). Hence, this cannot be raised for the first time on appeal.
* White v. Woodall, 95 Crim. L. Rep. 131, ___ U.S. ___, 134 S.Ct. 1697 (U.S. 4/23/14):

Holding: State court did not unreasonably apply existing U.S. Supreme Court precedent in holding that 5^th Amendment does not require a judge in a capital penalty phase to give a no-adverse-inference instruction on a defendant’s failure to testify in penalty phase. Sec. 2254(d)(1) provides a remedy only where a state court unreasonably “applies” U.S. Supreme Court precedent; “it does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error.” Court expresses no opinion on whether a no-adverse-inference instruction would be required in a case not reviewed under the high standard for habeas relief under AEDPA.
* Burt v. Titlow, ___ U.S. ___, 94 Crim. L. Rep. 197 (U.S. 11/5/13):
Holding: When federal courts review ineffective assistance of counsel claims, AEDPA combined with the already-deferential standard toward counsel’s performance in Strickland, require federal courts to be doubly deferential to state courts’ denial of Sixth Amendment claims; Supreme Court defers to state court finding that counsel was not ineffective under Frye/Lafler in advising Defendant to withdraw a guilty plea and proceed to trial even though counsel failed to obtain the case file (discovery) from the prior attorney before giving this advice, and counsel had Defendant sign over the media rights to counsel of this high-profile case; record indicated that Defendant withdrew her guilty plea because she wanted to protest her innocence.
* Trevino v. Thaler, 93 Crim. L. Rep. 292, ___ U.S. ___ (U.S. 5/28/13):

Holding: Where a state’s procedural framework appears to allow a claim of ineffective assistance of trial counsel to be raised on direct appeal but in operation makes it highly unlikely that such a claim can be raised, the exception to procedural default recognized in Martinez v. Ryan, 566 U.S. 1 (2012) will apply, i.e., a procedural default will not bar a federal habeas court from hearing a substantive claim of ineffective assistance of counsel at trial if, in the state’s initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.
* Ryan v. Gonzales, 2013 WL 68690, ___ U.S.___ (U.S. 2013):

Holding: Federal habeas petitioners do not have a right to a stay of habeas proceedings under the 6^th Amendment right to counsel or statutory right to counsel even though the petitioners are incompetent during the proceedings.
* Marshall v. Rodgers, 93 Crim. L. Rep. 13, ___ U.S. ___ (U.S. 2013):

Holding: In determining whether a state court decision is contrary to clearly established federal law, a federal appellate court may look to circuit precedent to determine if it has already held that a particular issue is clearly established by Supreme Court precedent, but the federal appellate court may not canvass circuit decisions to determine whether a particular rule is so widely accepted among Federal Circuits that it would be accepted by the Supreme Court.
* Chaidez v. U.S., 92 Crim. L. Rep. 609, ___ U.S. ___ (U.S. 2/20/13):
Holding: Padilla’s ruling that defense attorneys must warn clients about immigration consequences is a new rule that is not retroactive on collateral review.
* Johnson v. Williams, 92 Crim. L. Rep. 614, ___ U.S. ___ (U.S. 2/20/13):
Holding: When a state postconviction court addresses some claims but not others, the federal habeas court must presume that the federal claim was adjudicated on the merits, even though not mentioned by the state court.
* Metrish v. Lancaster, 93 Crim. L. Rep. 233, ___ U.S. ___ (U.S. 5/20/13):

Holding: State court did not unreasonably apply federal law when it held that there was no due process violation when State retroactively abolished a diminished capacity defense to make it inapplicable at Defendant/Petitioner’s retrial.
* McQuiggin v. Perkins, 93 Crim. L. Rep. 265, ___ U.S. ___ (U.S. 5/28/13):

Holding: Habeas petitioners who miss 1-year deadline under AEDPA may still have their petition heard if they can demonstrate that no reasonable juror would have convicted them after hearing new evidence of “actual innocence” raised in petition.
* Nevada v. Jackson, 93 Crim. L. Rep. 318, ___ U.S. ___ (U.S. 6/3/13):

Holding: 9^th Circuit exceeded its authority under AEDPA to grant habeas relief where it framed Supreme Court precedents with great generality in holding that state had unreasonably applied federal law; Supreme Court had not directly held that a defendant should be able to use extrinsic evidence of sex assault victim’s prior false allegations against him to impeach victim.
* Coleman v. Johnson, 2012 WL 1912196, ___ U.S. ___ (U.S. 2012):

Holding: (1) A federal habeas court may overturn a state court decision finding the evidence sufficient only if the state court decision is “objectively unreasonable” and (2) while the federal court looks to state law to determine the elements of the offense, the minimum amount of evidence required to sustain the conviction is determined by reference to federal due process law, not state law; applying these standards, Supreme Court held evidence was sufficient to support verdict that Defendant had requisite intent to kill victim.
* Wood v. Milyard, 2012 WL 1392558 (U.S. 2012):

Holding: In exceptional cases, federal appellate courts have the authority to raise sua sponte a forfeited timeliness defense to a state prisoner’s habeas petition.
* Parker v. Matthews, 2012 WL 2076341, ___ U.S. ___ (U.S. 2012):

Holding: (1) A federal habeas court cannot second-guess reasonable decisions of state courts, and (2) the 6^th Circuit erred in looking to its own precedents rather than U.S. Supreme Court decisions in assessing the reasonableness of a state court’s rejection of a due process challenge to prosecutor’s closing argument.
* Wood v. Milyard, ___ U.S. ___, 91 Crim. L. Rep. 125 (U.S. 4/24/12):

Holding: Federal appellate courts reviewing federal habeas claims have authority to raise the federal statute of limitations against a petitioner’s petition even though it was not raised by the State, but it is an abuse of discretion for the court to do so where the State affirmatively waived the statute of limitations.
* Martinez v. Ryan, ___ U.S. ___, 90 Crim. L. Rep. 805 (U.S. 3/20/12):

Holding: Where claim of ineffective assistance of trial counsel was not presented to State court, federal habeas court may excuse this procedural default if postconviction counsel failed to provide effective assistance or there was no postconviction counsel at all in the State proceeding.
* Martinez v. Ryan, ___ U.S. ___, 90 Crim. L. Rep. 805 (U.S. 3/20/12):

Holding: A federal habeas petitioner may be excused from procedural default in federal habeas if the default was caused by state postconviction counsel who was constitutionally ineffective.
* Martinez v. Ryan, 2012 WL 912950 (U.S. 2012):

Holding: When state law provides that claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.
* Maples v. Thomas, ___ U.S. ___, 90 Crim. L. Rep. 539 (U.S. 1/18/12):
Holding: Where petitioner’s state postconviction counsel abandoned him without telling him and thus petitioner missed a state postconviction filing deadline, this constituted “cause” to excuse the procedural default for federal habeas purposes.
* Gonzalez v. Thaler, ___ U.S. ___, 90 Crim. L. Rep. 441 (U.S. 1/10/12):

Holding: (1) For federal habeas time limit purposes, “for a state prisoner who does not seek review in a State’s highest court, the judgment becomes ‘final’ on the date that the time for seeking such review expires,” and (2) habeas statute’s requirement that a certificate of appealability identify the constitutional issue worthy of consideration is not jurisdictional.
* Greene v. Fisher, ___ U.S. ___, 90 Crim. L. Rep. 232 (U.S. 11/8/11):

Holding: “Clearly established federal law” used by AEDPA means law in place when the state court adjudicated petitioner’s claim, not law in place when petitioner’s conviction became final.
* Cullen v. Pinholster, ___ U.S. ___, 89 Crim. L. Rep. 5, 131 S.Ct. 1388 (U.S. 4/4/11):

Holding: Federal habeas court is limited to reviewing the evidence that was before the state court in determining under 28 USC 2254(d)(1) if state court decision is “contrary to, or an unreasonable application of clearly established federal law”; federal court should not have considered new mitigating evidence that was not presented to state court in considering ineffective assistance of counsel claim; it was not unreasonable for state court to conclude that counsel made a strategic decision not to present further evidence of defendant’s mental problems because that could lead jury to believe that defendant could not be rehabilitated.
* Felkner v. Jackson, ___ U.S. ___, 88 Crim. L. Rep. 794, 2011 WL 940865 (U.S. 3/21/11):

Holding: Where 9^th Circuit, without much explanation, overturned a state court’s determination that Batson was not violated, this violated AEDPA because the Batson issue turned on credibility of prosecutor’s explanations and AEDPA imposes a highly deferential standard of evaluating state court rulings and requires such rulings be given the benefit of the doubt.
* Skinner v. Switzer, ___ U.S. ___, 88 Crim. L. Rep. 683 (U.S. 3/7/11):

Holding: Prisoner can use 42 USC Sec. 1983 to obtain access to evidence for DNA testing after a conviction.
* Wall v. Kholi, ___ U.S. ___, 88 Crim. L. Rep. 685, 2011 WL 767700 (U.S. 3/7/11):

Holding: 28 USC 2244(d)(2) of AEDPA, which tolls the time for filing a federal habeas corpus petition while a properly filed application for state “collateral review” is pending, is triggered by a state judicial review of a defendant’s motion for sentencing reduction that amounts to a plea for leniency; “collateral review” means judicial review of a judgment in a proceeding that is not part of direct review.
Ramos-Martinez v. U.S., 88 Crim. L. Rep. 818, 2011 WL 768966 (1^st Cir. 3/7/11):

Holding: Equitable tolling is available to federal habeas petition.
* Walker v. Martin, ___ U.S. ___, 88 Crim. L. Rep. 631, 2011 WL 611627 (U.S. 2/23/11):

Holding: California’s discretionary deadline for filing state post-conviction motions is applied firmly and consistently enough, that even if there are some inconsistencies, failure to comply with it is an “adequate and independent state ground” for barring federal habeas relief.
* Swarthout v. Cooke, ___ U.S. ___, 88 Crim. L. Rep. 464, 2011 WL 197627 (U.S. 1/24/11):

Holding: Federal habeas relief is not available for an error of state law; thus, federal court cannot grant habeas relief on grounds that state court violated state law in denying parole.
* Harrington v. Richter, ___ U.S. ___, 88 Crim. L. Rep. 474, 131 S.Ct. 770 (U.S. 1/19/11):

Holding: Even though state court decision denying postconviction relief did not express any reasons for denial, this is still an “adjudication on the merits” that requires federal courts to apply a deferential reasonableness standard on federal habeas review; state court’s decision that counsel was not ineffective in failing to get a blood expert was not unreasonable.
Kovacs v. U.S., 94 Crim. L. Rep. 704 (2d Cir. 3/3/14):
Holding: Padilla error will entitle Defendant to writ of error coram nobis where Defendant can show that he either would have litigated a meritorious defense, or would have negotiated a better deal with no adverse immigration consequences, or would have gone to trial but for counsel’s mistaken advice regarding immigration.
Young v. Conway, 92 Crim. L. Rep. 108 (2d Cir. 10/16/12):

Holding: (1) Habeas relief granted where state court’s admission of eyewitness identification evidence failed to account for empirical studies on the issue, and (2) rule of abstention from Stone v. Powell that prevents federal courts from addressing 4^th Amendment claims does not apply where state fails to raise the issue in district court.
Rivas v. Fischer, 2012 WL 2686117 (2d Cir. 2012):

Holding: Petitioner qualified for “actual innocence” exception to statute of limitations for federal habeas corpus where he presented a pathologist who testified that time victim was killed would been consistent with Defendant’s alibi, which contradicted the State’s trial pathologist, who had been the subject of numerous investigations for official misconduct.
Vu v. U.S., 89 Crim. L. Rep. 416 (2d Cir. 6/7/11):

Holding: Petitioner’s unsuccessful 2255 motion seeking reinstatement of his right to direct appeal does not render a subsequent 2255 motion challenging his conviction and sentence “second or successive” under AEDPA.
Dillon v. Conway, 89 Crim. L. Rep. 165, 2011 WL 1548955 (2d Cir. 4/26/11):

Holding: Where habeas petitioner’s attorney erroneously calculated due date for petition and falsely assured petitioner that attorney would file early, this justified equitable tolling of statute of limitations after petition was filed late.
In re Pendleton, 2013 WL 5486170 (3d Cir. 2013):